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Court of Justice of the European Communities Judgments in

the field of customs community law

C
Caasseess ooppeenneedd iinn 11999955--22001100

Updated 16/04/2010
Case C-386/08, 25 February 2010
Brita GmbH v Hauptzollamt Hamburg-Hafen,

EC-Israel Association Agreement – Territorial scope – EC-PLO Association Agreement


– Refusal to apply to products originating in the West Bank the preferential tariff
arrangements granted for products originating in Israel – Doubts as to the origin of the
products – Approved exporter – Subsequent verification of invoice declarations by the
customs authorities of the importing State – Vienna Convention on the Law of Treaties –
Principle of the relative effect of treaties)

The customs authorities of the importing Member State may refuse to grant the
preferential treatment provided for under the Euro-Mediterranean Agreement
establishing an association between the European Communities and their Member States,
of the one part, and the State of Israel, of the other part, signed in Brussels on 20
November 1995, where the goods concerned originate in the West Bank. Furthermore,
the customs authorities of the importing Member State may not make an elective
determination, leaving open the questions of which of the agreements to be taken into
account – namely, the Euro-Mediterranean Agreement establishing an association
between the European Communities and their Member States, of the one part, and the
State of Israel, of the other part, and the Euro-Mediterranean Interim Association
Agreement on trade and cooperation between the European Community, of the one part,
and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian
Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24
February 1997 – applies in the circumstances of the case and of whether proof of origin
falls to be issued by the Israeli authorities or by the Palestinian authorities.

For the purposes of the procedure laid down in Article 32 of Protocol No 4 appended to
the Euro-Mediterranean Agreement establishing an association between the European
Communities and their Member States, of the one part, and the State of Israel, of the
other part, the customs authorities of the importing State are not bound by the proof of
origin submitted or by the reply given by the customs authorities of the exporting State
where that reply does not contain sufficient information, for the purposes of Article 32(6)
of that protocol, to enable the real origin of the products to be determined. Furthermore,
the customs authorities of the importing State are not obliged to refer to the Customs
Cooperation Committee set up under Article 39 of that protocol a dispute concerning the
territorial scope of that agreement.

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Case C-373/08, 11 February 2010

Hoesch Metals and Alloys GmbH v Hauptzollamt Aachen

Community Customs Code – Article 24 – Non-preferential origin of goods –


Origin-conferring processing or working – Silicon blocks originating in China –
Separation, crushing and purification of the blocks and the sieving, sorting by size and
packaging of the grains in India – Dumping – Validity of Regulation (EC) No 398/2004)

The separation, crushing and purification of silicon metal blocks and the subsequent
sieving, sorting and packaging of the silicon grains resulting from the crushing, as
carried out in the main proceedings, do not constitute origin-conferring processing or
working for the purposes of Article 24 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code.

The examination of the second question raised by the referring court has not revealed
any factors of such a kind as to affect the validity of Council Regulation (EC) No
398/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of silicon
originating in the People’s Republic of China.

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C-264/08, 28 January 2010

Belgische Staat v Direct Parcel Distribution Belgium NV,

Community Customs Code – Customs debt – Amount of duty – Articles 217 and 221 –
Communities’ own resources – Regulation (EC, Euratom) No 1150/2000 – Article 6 −
Requirement of entry in the accounts of the amount of duty before it is communicated to
the debtor – Definition of ‘legally owed’

Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing


the Community Customs Code must be interpreted as meaning that ‘entry in the
accounts’ of the amount of duty to be recovered as referred to in that provision is the
same as ‘entry in the accounts’ of that amount as defined in Article 217(1) of that
regulation.

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C-430/08 and C-431/08 (Joined cases) 14 January 2010
Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd (C-431/08)
Caterpillar EPG Ltd (C-431/08) v The Commissioners for Her Majesty’s
Revenue & Customs,

Regulation (EEC) No 2913/92 establishing the Community Customs Code –


Articles 78 and 203 – Regulation (EEC) No 2454/93 – Article 865 – Inward
processing procedure – Incorrect customs procedure code – Circumstances
under which a customs debt is incurred – Revision of a customs declaration

The use in the export declarations at issue in the main proceedings of customs
code 10 00 indicating the export of Community goods, instead of code 31 51 used
for goods for which duties are suspended under the inward processing procedure,
gives rise to a customs debt pursuant to Article 203(1) of Council Regulation
(EEC) No 2913/92 of 12 October 1992 establishing the Community Customs
Code and the first paragraph of Article 865 of Commission Regulation (EEC) No
2454/93 of 2 July 1993 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code, as amended
by Commission Regulation (EC) No 1677/98 of 29 July 1998.

Article 78 of Regulation No 2913/92 permits the revision of the export


declaration of the goods in order to correct the customs procedure code given to
them by the declarant, and the customs authorities are obliged, first, to assess
whether the provisions governing the customs procedure concerned have been
applied on the basis of incorrect or incomplete information and whether the
objectives of the inward processing regime have not been threatened, in
particular in that the goods subject to that customs procedure have actually been
re-exported, and, second, where appropriate, to take the measures necessary to
regularise the situation, taking account of the new information available to them.

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C-410/08 to C-412/08 (Joined Cases), 17 December 2009

Swiss Caps AG v Hauptzollamt Singen

Tariff classification - Tariff headings 1515, 1517, 2106 and 3004 - Gelatin
capsules - Fish oil, wheat-germ oil and black cumin oil - Concept of
'packaging')

The Combined Nomenclature, set out in Annex I to Council Regulation (EEC) No


2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No
2388/2000 of 13 October 2000, must be interpreted as meaning that: edible
preparations presented in the form of capsules containing 600 mg of cold-pressed
concentrated fish oil and 22.8 mg of concentrated vitamin E in a casing
consisting of 212.8 mg of gelatin, 77.7 mg of glycerol and 159.6 mg of purified
water and intended for use as a food supplement; edible preparations presented
in the form of capsules containing 580 mg of wheat-germ oil in a casing
consisting of 250 mg of granulated starch and intended for use as a food
supplement; and edible preparations presented in the form of capsules containing
500 mg of cold-pressed black cumin oil, 38.7 mg of soya oil, 18.8 mg of vitamin
E, 16 mg of butterfat, 10 mg of lecithin, 8.2 mg of wax, 8 mg of calcium
pantothenate, 0.2 mg of folic acid and 0.11 mg of biotin in a casing consisting of
313.97 mg of gelatin mass (47.3% gelatin, 17.2% glycerine, 35.5% water), 4.30
mg of paste consisting of 50% titanium dioxide and 50% glycerine, and 1.73 mg
of paste consisting of 25% quinoline yellow lacquer and 75% glycerine and
intended for use as a food supplement come under heading 2106 of the
abovementioned Combined Nomenclature.
Case C-260/08 , 10 December 2009

Bundesfinanzdirektion West v HEKO Industrieerzeugnisse GmbH,

This reference for a preliminary ruling concerns the interpretation of Article 24 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code
(OJ 1992 L 302, p. 1) (‘the Customs Code’), for the purpose of determining the origin of goods
coming under heading 7312 of the Combined Nomenclature, constituting Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation
(EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1) (‘the CN’).

With regard to goods classified under heading 7312 of the Combined Nomenclature
constituting Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1719/2005 of 27 October 2005, ‘substantial processing or working’ within
the meaning of Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, may cover not only such processing or working as
leads to the goods which have undergone the process being classified under a different heading
of the Combined Nomenclature, but also such processing or working as results, without such a
change of heading, in the creation of a product with properties and a composition of its own
which it did not have before the process.
Case C-140/08 29 October 2009.

Rakvere Lihakombinaat AS v Põllumajandusministeerium and Maksu- ja Tolliameti Ida


maksu- ja tollikeskus

Reference for a preliminary ruling: Tallinna Halduskohus – Estonia concerning the interpretation
of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by
Commission Regulation (EC) No 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1), and
the interpretation of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on
transitional measures to be adopted in respect of trade in agricultural products on account of the
accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland,
Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC)
No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13, ‘Regulation No 1972/2003’).

Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission Regulation
(EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning that products such
as those at issue in the main proceedings constituted of frozen mechanically separated meat
obtained after the mechanical deboning of fowls and destined for human consumption must be
classified in subheading 0207 14 10 of the Combined Nomenclature.

Article 4(2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on


transitional measures to be adopted in respect of trade in agricultural products on account of
the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta,
Poland, Slovenia and Slovakia, as amended by Commission Regulation (EC) No 230/2004 of
10 February 2004, does not preclude national legislation such as Article 6(1) of the Law on
the surplus stock charge (Üleliigse laovaru tasu seadus), as amended by the Law of 25
January 2007, under which an operator’s surplus stock is determined by deducting from the
stock actually held on 1 May 2004 the transitional stock defined as the average stock on
1 May of the previous four years of activity multiplied by a coefficient of 1.2 corresponding to
the growth of agricultural production observed in the Member State in question during that
four-year period.

Regulation No 1972/2003 does not preclude the levying of a charge on an operator’s surplus
stock even if he is able to prove that he obtained no advantage when marketing that stock
after 1 May 2004.

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C-522/07 and C-65/08, 29 October 2009.

Dinter GmbH v Hauptzollamt Düsseldorf (C-522/07) and Europol Frost-Food GmbH v


Hauptzollamt Krefeld (C-65/08). References for a preliminary ruling: Finanzgericht Düsseldorf -
Germany.

Common Customs Tariff - Regulation (EEC) No 2658/87 - Combined Nomenclature - Tariff


classification - Validity - Additional note - Apple juice concentrate

Additional Note 5(b) to Chapter 20 of Annex I to Council Regulation (EEC) No 2658/87 of 23


July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as
amended by Commission Regulations (EC) No 1776/2001 of 7 September 2001, (EC) No
2031/2001 of 6 August 2001 and (EC) No 1810/2004 of 7 September 2004, amending Annex I
to Regulation No 2658/87, is invalid to the extent that it excludes natural apple juice
concentrate from heading 2009.

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Case C-141/08 1 October 2009.

Foshan Shunde Yongjian Housewares & Hardware Co. Ltd v Council of the European
Union.

Appeals - Commercial policy - Dumping - Imports of ironing boards originating in China -


Regulation (EC) No 384/96 - Articles 2(7)( c) and 20(4) and (5) - Market economy treatment -
Rights of the defence - Anti-dumping investigation - Periods granted to undertakings to submit
their representations.

Sets aside the judgment of the Court of First Instance of 29 January 2008 in Case T-206/07
Foshan Shunde Yongjian Housewares & Hardware v Council in so far as the Court of First
Instance found that Foshan Shunde Yongjian Housewares & Hardware Co. Ltd’s rights of
defence were not adversely affected by the infringement of Article 20(5) of Council Regulation
(EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries
not members of the European Community;

Annuls Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive


anti-dumping duty and collecting definitively the provisional duty imposed on imports of
ironing boards originating in the People’s Republic of China and Ukraine, in so far as it
imposes an anti-dumping duty on imports of ironing boards manufactured by Foshan Shunde
Yongjian Housewares and Hardware Co. Ltd.;

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T-385/05. 23 September 2009.

Transnáutica - Transportes e Navegação, SA v Commission of the European Communities.

Customs union - External Community transit operations - Consignments of tobacco and ethyl
alcohol for third countries - Fraud - Claim for remission of import duties - Article 239 of
Regulation (EEC) No 2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause
- Existence of a special situation - Comprehensive guarantee.

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C-535/06, 3 September 2009.

Moser Baer India Ltd v Council of the European Union.

Appeal - Dumping - Imports of recordable compact discs originating in India - Regulation (EC)
No 960/2003 - Calculation of the amount of countervailing subsidy - Determination of injury -
Article 8(7) of Regulation (EC) No 2026/97.

By its appeal, Moser Baer India Ltd seeks to have set aside the judgment of the Court of First
Instance of the European Communities of 4 October 2006 in Case T-300/03 Moser Baer India v
Council [2006] ECR II-3911 (‘the judgment under appeal’), by which the Court of First
Instance dismissed the appellant’s action for annulment of Council Regulation (EC) No
960/2003 of 2 June 2003 imposing a definitive countervailing duty on imports of recordable
compact discs originating in India (OJ 2003 L 138, p. 1; ‘the contested regulation’) in so far as
it applies to the appellant.

Appeal dismissed

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C-124/081 16 July 2009.

Gilbert Snauwaert and Others v Belgische Staat.

References for a preliminary ruling: Hof van Cassatie - Belgium.

Regulation (EEC) No 2913/92 - Community Customs Code - Customs debt - Amount of duty -
Communication to the debtor - Act that could give rise to criminal court proceedings.

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1
Joined cases C-124/08 and C-125/08
C-125/08. 16 July 2009

Géry Deschaumes v Belgische Staat.

References for a preliminary ruling: Hof van Cassatie - Belgium.

Regulation (EEC) No 2913/92 - Community Customs Code - Customs debt - Amount of duty
- Communication to the debtor - Act that could give rise to criminal court proceedings.

1. Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing


the Community Customs Code must be interpreted as meaning that the amount of import or
export duty due may be validly communicated to the debtor by the customs authorities in
accordance with appropriate procedures, only if the amount of that duty has been entered in
the accounts beforehand by those authorities.

2. Article 221(3) of Regulation No 2913/92 must be interpreted as meaning that the customs
authorities may, after the expiry of the period of three years from the date on which the
customs debt was incurred, validly communicate to the debtor the amount of duty legally due,
where the exact amount of that duty could not be determined by those authorities as a result
of an act that could give rise to criminal court proceedings. That includes cases where the
debtor has not committed that act.

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C-126/08 16 July 2009

Distillerie Smeets Hasselt NV v Belgische Staat and Others, Belgische Staat v Bollen,
Mathay & Co. BVBA and Louis De Vos v Belgische Staat.

Reference for a preliminary ruling: Hof van Cassatie - Belgium.

Interpretation of Articles 217(1) and 221(1) of Council Regulation (EEC) No 2913/92 of


12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the
Customs Code’).

Article 217 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code must be interpreted as meaning that Member States can provide
that the entry in the accounts of the amount of duty resulting from a customs debt may be
effected by the entry of that amount on a record which is drawn up by the competent customs
authorities and establishes an infringement of the applicable customs legislation.

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C-56/08 16 July 2009.

Pärlitigu OÜ v Maksu- ja Tolliameti Põhja maksu- ja tollikeskus.

Reference for a preliminary ruling under Article 234 EC, from the Tallinna Halduskohus
proceedings between Maksu- ja Tolliameti Põhja maksu- ja tollikeskus (‘the PMTK’), the
Estonian tax and customs office, and Pärlitigu OÜ (‘Pärlitigu’), a company incorporated
under Estonian law, concerning a tax notice issued to the latter.Common Customs Tariff

– Combined Nomenclature – Tariff classification – Subheading CN 0511 91 10 – Subheading


CN 0303 22 00 – Frozen backbones of farmed Atlantic salmon – Regulation (EC) No 85/2006
– Anti-dumping duties).

The Combined Nomenclature, which constitutes Annex I to Council Regulation (EEC) No


2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October
2005, must be interpreted as meaning that frozen backbones of farmed Atlantic salmon
( Salmo salar ), obtained after filleting the fish, must be classified under CN heading 0303 22
00 if the goods are fit for human consumption at the time that they are cleared through
customs, which it is for the national court to ascertain.

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Case C-7/08, 2 July 2009.

Har Vaessen Douane Service BV v Staatssecretaris van Financiën.

Reference for a preliminary ruling: Hoge Raad der Nederlanden - Netherlands.

Relief from import duties - Regulation (EEC) No 918/83 - Article 27 - Goods of a negligible
individual value dispatched as a grouped consignment - Consignments dispatched direct from
a third country to a consignee in the Community.

Article 27 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community


system of reliefs from customs duty, as amended by Regulation (EEC) No 3357/91 of 7
November 1991, does not preclude grouped consignments of goods, with a combined intrinsic
value which exceeds the value threshold laid down in Article 27, but which are individually of
negligible value, from being admitted free of import duties, provided that each parcel of the
grouped consignment is addressed individually to a consignee within the European
Community. In that respect, the fact that the contractual partner of those consignees is itself
established in the European Community is not relevant where the goods are dispatched
directly from a third country to those consignees.

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C-302/08, 2 July 2009

Zino Davidoff SA v Bundesfinanzdirektion Südost.

Reference for a preliminary ruling: Finanzgericht München - Germany.

Trade marks - International registration - Protocol Relating to the Madrid Agreement -


Regulation (EC) No 40/94 - Article 146 - International registration and a Community trade
mark having the same effects in the Community - Regulation (EC) No 1383/2003 - Article
5(4) - Goods suspected of infringing a trade mark - Customs action - Proprietor of a
Community trade mark - Right to secure action also in Member States other than the Member
State in which the application is lodged - Extension to the holder of an international
registration.

Article 5(4) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs
action against goods suspected of infringing certain intellectual property rights and the
measures to be taken against goods found to have infringed such rights, read in the light of
Article 146 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community
trade mark, as amended by Council Regulation (EC) No 1992/2003 of 27 October 2003, is to
be interpreted as allowing the holder of an internationally registered trade mark to secure
action by the customs authorities of one or more other Member States, besides that of the
Member State in which it is lodged, just like the proprietor of a Community trade mark.

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Case C-173/08 18 June 2009.

Kloosterboer Services BV v Inspecteur van de Belastingdienst/Douane Rotterdam.

Reference for a preliminary ruling: Gerechtshof te Amsterdam - Netherlands.

Common Customs Tariff - Tariff headings - Cooling systems for computers composed
of a heat sink and a fan - Classification in the Combined Nomenclature.

Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning
that goods, such as those at issue in the main proceedings, made up of a heat sink and
a fan and which are solely intended to be incorporated in a computer must be
classified under subheading 8473 30 90 of the Combined Nomenclature in Annex I to
that regulation.

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Case C-16/08 11 June 2009.

Schenker SIA v Valsts ieņēmumu dienests.

Reference for a preliminary ruling: Administratīvā apgabaltiesa - Latvia.

Common Customs Tariff - Tariff classification - Combined Nomenclature - Active


matrix liquid crystal devices.

Subheading 8528 21 90 of the Combined Nomenclature constituting Annex I to


Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1789/2003 of 11 September 2003, must be interpreted as not
applying, as at 29 December 2004, to active matrix liquid crystal devices (LCD)
principally made up of the following elements:

– two glass plates;


– a layer of liquid crystal inserted between the two plates;
– vertical and horizontal signal drivers;
– backlight;
– inverter providing high-voltage power for backlight;
– control block – data transmission interface (control PCB or PWB) to ensure
sequential transmission of data to each pixel (dot) of the LCD unit using specific
technology – LVDS (low-voltage differential signalling).

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Case C-158/08 4 June 2009.

Agenzia Dogane Ufficio delle Dogane di Trieste v Pometon SpA.

Reference for a preliminary ruling: Commissione tributaria regionale di


Trieste - Italy.

Community customs code - Regulation (EC) No 384/96 - Protection against


dumped imports from countries not members of the European Community -
Regulation (EC, Euratom) No 2988/95 - Protection of the European
Communities’ financial interests - Processing under the inward processing
procedure - Irregular practice.

1. Article 13 of Council Regulation (EC) No 384/96 of 22 December 1995


on protection against dumped imports from countries not members of the
European Community is inapplicable in the absence of a Council decision,
adopted on a proposal from the Commission, to extend the application of
anti-dumping duties to imports from third countries of like products or parts
thereof.

2. An operation which consists in merely sending goods over the border


after processing them into a product which is not subject to anti-dumping
duties without any actual intention to re-export them and re-importing them
shortly after cannot lawfully be placed under inward processing procedure.
An importer who improperly brings himself within that procedure and
benefits from it is required to pay the duties on the products concerned,
without prejudice, where appropriate, to administrative, civil or criminal
sanctions provided for by national law. It is for the national court having
jurisdiction in the matter to determine whether the operation concerned in
the main proceedings must, in the light of the considerations set out above,
be regarded as irregular in the light of Community law.

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T-159/09 25 May 2009

Biofrescos Comércio de Produtos Alimentares Lda v Commission

Application for interim measures — Application for suspension of operation


— Submission of the application — Inadmissibility — Financial loss —
Lack of urgency

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Case C-161/08 14 May 2009.

Internationaal Verhuis- en Transportbedrijf Jan de Lely BV v


Belgische Staat.

Reference for a preliminary ruling: Hof van Beroep te Antwerpen -


Belgium.

Free movement of goods - Community transit - Transport operations carried


out under cover of a TIR carnet - Offences or irregularities - Notification
period - Period within which proof must be furnished of the place where the
offence or irregularity was committed.

1. Article 2(1) of Commission Regulation (EEC) No 1593/91 of 12 June


1991 providing for the implementation of Council Regulation (EEC)
No 719/91 on the use in the Community of TIR carnets and ATA carnets as
transit documents, read in conjunction with Article 11(1) of the Customs
Convention on the International Transport of Goods under Cover of TIR
Carnets, signed in Geneva on 14 November 1975, must be interpreted as
meaning that failure to comply with the period within which the holder of a
TIR carnet is to be notified of its non-discharge does not have the
consequence that the competent customs authorities forfeit the right to
recover the duties and taxes due in respect of the international transport of
goods made under cover of that carnet.

2. Article 2(2) and (3) of Regulation No 1593/91, read in conjunction with


Article 11(1) and (2) of the Customs Convention on the International
Transport of Goods under Cover of TIR Carnets, signed in Geneva on
14 November 1975, must be interpreted as determining only the period
within which proof is to be furnished of the regularity of the transport
operation, and not the period within which proof must be provided as to the
place where the offence or irregularity was committed. It is for the national
court to determine, according to the principles of national law on evidence,
whether, in the specific case before it and in the light of all the
circumstances, that proof was furnished within the period prescribed.
However, the national court must determine that period in compliance with
Community law and, in particular, must take account of the fact, first, that
the period must not be so long as to make it legally and materially
impossible to recover the amounts due in another Member State, and,
second, that that period must not make it materially impossible for the TIR
carnet holder to furnish that proof.

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Case C-150/08 7 May 2009.

Siebrand BV v Staatssecretaris van Financiën.

Reference for a preliminary ruling: Hoge Raad der Nederlanden -


Netherlands.

Combined Nomenclature - Tariff headings 2206 and 2208 - Fermented


beverage containing distilled alcohol - Beverage produced from fruit or
from a natural product - Addition of substances - Effects - Loss of the taste,
smell and appearance of the original beverage.

Fermented alcohol-based beverages corresponding originally to heading


2206 of the Combined Nomenclature in Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation
(EEC) No 2587/91 of 26 July 1991, to which a certain proportion of
distilled alcohol, water, sugar syrup, aromas, colourings and, in some cases,
a cream base have been added, resulting in the loss of the taste, smell
and/or appearance of a beverage produced from a particular fruit or
natural product, do not come under heading 2206 of the Combined
Nomenclature but rather under heading 2208 thereof.

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C-459/07 2 April 2009.

Veli Elshani v Hauptzollamt Linz.

Reference for a preliminary ruling: Unabhängiger Finanzsenat, Außenstelle


Graz - Austria.

Community Customs Code - Article 202 and point (d) of the first paragraph
of Article 233 - Incurrence of a customs debt - Unlawful introduction of
goods - Seizure and confiscation - Extinction of the customs debt - Moment
at which seizure must take place.

1. Article 202 and point (d) of the first paragraph of Article 233 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 2700/2000
of the European Parliament and of the Council of 16 November 2000, must
be interpreted as meaning that, in order to lead to the extinction of the
customs debt, the seizure of goods unlawfully introduced into the customs
territory of the Community must take place before those goods go beyond
the first customs office situated inside that territory.

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C-134/08 2 April 2009

Hauptzollamt Bremen v J. E. Tyson Parketthandel GmbH hanse j.

Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Regulation (EC) No 2193/2003- Additional customs duties on imports of


certain products originating in the United States of America - Temporal
scope - Article 4(2) - Products exported after the entry into force of that
regulation for which it can be demonstrated that they were already been on
their way to the Community when those duties were first applied - Whether
subject to duty.

Article 4(2) of Council Regulation (EC) No 2193/2003 of 8 December 2003


establishing additional customs duties on imports of certain products
originating in the United States of America must be interpreted in a manner
consistent with its wording, namely that products for which it can be
demonstrated that they are already on their way to the European
Community on the date of entry into force of that regulation, and whose
destination cannot be changed, are not to be subject to the additional duty.

_____________________________________________________________
C-256/07. 19 March 2009.

Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf.

Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

Community Customs Code - Repayment of customs duties - Article 29(1)


and (3)(a) - Value for customs purposes - Regulation (EEC) No 2454/93 -
Article 145(2) and (3) - Taking into account, for customs valuation purposes,
of payments made by the seller in performance of a warranty obligation
provided for in the contract of sale - Temporal application - Substantive
rules - Procedural rules - Retroactive application of a rule - Validity.

1. Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 of 12


October 1992 establishing the Community Customs Code and Article 145(2)
of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Regulation No 2913/92, as amended by
Commission Regulation (EC) No 444/2002 of 11 March 2002, must be
interpreted as meaning that, when defects affecting goods became apparent
after the goods were released for free circulation but it is demonstrated that
they existed before such release, and those defects give rise, under a
warranty obligation, to subsequent reimbursements by the
seller/manufacturer to the buyer, reimbursements which correspond to the
costs of repairs invoiced by the buyer’s own distributors, such
reimbursements can result in a reduction of the transaction value of the
goods and, as a result, of their customs value, which was declared on the
basis of the price initially agreed between the seller/manufacturer and the
buyer.

2. Article 145(2) and (3) of Regulation No 2454/93, as amended by


Regulation No 444/2002, do not apply to imports in respect of which the
customs declarations were accepted before 19 March 2002.

_____________________________________________________________
C-376/07- 19 February 2009-

Staatssecretaris van Financiën v Kamino International Logistics BV.

Reference for a preliminary ruling: Hoge Raad der Nederlanden - Netherlands.

Common Customs Tariff - Combined Nomenclature - Tariff classification


-Monitors of the liquid crystal display (LCD) type with SUB-D, DVI-D, USB, S-
video and composite-video sockets - Heading 8471 - Heading 8528 - Regulation
(EC) No 754/2004.

1. Monitors such as those at issue in the main proceedings are not excluded
from classification in subheading 8471 60 90, as units of the kind used
‘principally’ in an automatic data-processing system within the meaning of
Note 5(B)(a) to Chapter 84 of the combined nomenclature constituting
Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs Tariff, as
amended by Commission Regulation (EC) No 1789/2003 of 11 September
2003, solely because they are capable of displaying signals coming both
from an automatic data-processing machine and from other sources.

2. In order to determine whether monitors such as those at issue in the main


proceedings are units of the kind used principally in an automatic
data-processing system, the national authorities, including the courts, must
refer to the indications given in the Explanatory Notes relating to heading
8471 of the Harmonised System introduced by the International Convention
on the Harmonised Commodity Description and Coding System, concluded
in Brussels on 14 June 1983, and the Protocol of Amendment thereto of 24
June 1986, in particular to points 1 to 5 of Part One, Chapter I(D), relating
to display units of automatic data-processing machines.

3. Commission Regulation (EC) No 754/2004 of 21 April 2000 concerning


the classification of certain goods in the Combined Nomenclature is not
applicable for the purposes of tariff classification of the monitors at issue in
the main proceedings.

_____________________________________________________________
C-93/08 -12 February 2009-

Schenker SIA v Valsts ieòçmumu dienests.

Reference for a preliminary ruling: Augstâkâs tiesas Senâta Administratîvo lietu


departaments - Latvia.

Reference for a preliminary ruling - Regulation (EC) No 1383/2003 - Article 11


-Simplified procedure of abandoning goods for destruction - Prior determination whether
an intellectual property right has been infringed - Administrative penalty.

The initiation, with the agreement of an intellectual property right-holder and of the
importer, of the simplified procedure laid down in Article 11 of Council Regulation (EC)
No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of
infringing certain intellectual property rights and the measures to be taken against goods
found to have infringed such rights, does not deprive the competent national authorities
of the power to impose, on the parties responsible for importing those goods into the
Community customs territory, a ‘penalty’, within the meaning of Article 18 of that
regulation, such as an administrative fine.
_____________________________________________________________
C-349/07 18 December 2008.

Sopropé Organizações de Calçado Lda v Fazenda Pública.

Reference for a preliminary ruling: Supremo Tribunal Administrativo - Portugal.

Community Customs Code - Principle of respect for the rights of the defence -
Post-clearance recovery of customs import duties.

1. With regard to recovery of a customs debt for the purpose of effecting


post-clearance recovery of customs import duties, a period of 8 to 15 days allowed
to an importer suspected of having committed a customs offence in which to submit
its observations complies in principle with the requirements of Community law.

2. It is for the national court before which the case has been brought to ascertain,
having regard to the specific circumstances of the case, whether the period actually
allowed to that importer made it possible for it to be given a proper hearing by the
customs authorities.

3. The national court must also ascertain whether, in the light of the period which
elapsed between the time when the authorities concerned received the importer’s
observations and the date on which they took their decision, they can be deemed to
have taken due account of the observations sent to them.

_____________________________________________________________
T-144/05. 18 December 2008.

Pablo Muñiz v Commission of the European Communities.

Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a


meeting of the Working Group of the ‘Tariff and Statistical Nomenclature
Section (Mechanical/Miscellaneous)’ of the Customs Code Committee - Refusal
of access - Exception relating to the protection of the decision-making process.

The Court:

1. Annuls the Commission’s decision of 3 February 2005 inasmuch as it refused


access to documents, ‘TAXUD/1369/2003’ relating to home cinema,
‘TAXUD/974/2004’ relating to vehicles for dual use, ‘TAXUD/1342/2003’,
‘TAXUD/2465/2004’ and ‘TAXUD/2495/2004’ relating to power supply units,
‘XXI/770/1998’ relating to incomplete ADP machines, and to the minutes of the
September 2004 meeting of the Working Group of the ‘Tariff and Statistical
Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code
Committee (document ‘TAXUD/3010/2004 – Annex V’);

…………

________________________________________________________________
C-362/07 and C-363/07 – 11 December /08 –

Kip Europe SA and Others (C-362/07) and Hewlett Packard International SARL
(C-363/07) v Administration des douanes – Direction générale des douanes et droits
indirects

Common Customs Tariff – Combined Nomenclature – Tariff classification – Multi-


function apparatus – Apparatus combining the functions of laser printer and a digital
electronic scanner module, with a copier function – Heading 8471 – Heading 9009

1. Note 5(E) to Chapter 84 of the combined nomenclature constituting Annex I to Council


Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
1719/2005 of 27 October 2005, is to be interpreted as meaning that only machines
incorporating an automatic data-processing machine or working in conjunction with
such a machine, whose function is not data processing, perform ‘a specific function other
than data processing’.

2. If the copying function performed by the machines at issue in the main proceedings is
secondary in relation to the printing and electronic scanning functions, they must be
considered units of automatic data-processing machines within the meaning of Note 5(B)
to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No
2658/87, as amended by Regulation No 1719/2005, which units, by application of Note
5(C) to that chapter, if they are presented in isolation, fall within heading 8471. In such a
case, the relevant subheading must be determined in accordance with Note 3 to Section
XVI of the said nomenclature. However, if the importance of that copying function is
equivalent to that of the other two functions, those machines must be classified, by
application of General Rule 3(b) of the General rules for the interpretation of that
nomenclature, under the heading corresponding to the module which gives those
machines their essential character. If such identification proved impossible, they must be
classified under heading 9009 in accordance with General Rule 3(c).

3. Examination of the fifth questions referred has not raised any factor liable to affect the
validity of point 4 of the Annex to Commission Regulation (EC) No 400/2006 of 8 March
2006 concerning the classification of certain goods in the Combined Nomenclature.

______________________________________________________________________
T-210/07 3 December 2008

RSA Security Ireland Ltd v Commission of the European Communities.

Action for annulment – Common Customs Tariff – Issue of binding tariff information –
Power of the national customs authorities – Non-actionable measure – Inadmissibility

_____________________________________________________________
C-403/07 – 27 November 08

Metherma GmbH & Co. KG v Hauptzollamt Düsseldorf

Common Customs Tariff – Combined Nomenclature – Tariff classification – Headings


8101 and 8102 – Shattering and breaking-up of bars of tungsten or molybdenum
‘obtained simply by sintering’ – Unwrought tungsten and molybdenum, including bars
obtained simply by sintering – Waste and scrap

The Combined Nomenclature which is laid down in Annex I to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, in the version applicable in 2001, namely that deriving from
Commission Regulation (EC) No 2388/2000 of 13 October 2000 amending Annex I to
Regulation No 2658/87, must be interpreted as meaning that bars of tungsten or
molybdenum ‘obtained simply by sintering’ fall respectively under its subheadings 8101
91 10 and 8102 91 10. Such bars, which consist of the metals in question in their
unwrought form and not of articles thereof, cannot be processed, by being broken up or
shattered, into scrap falling respectively under subheadings 8101 91 90 and 8102 91 90
of that Combined Nomenclature.

________________________________________________________________________
C-38/07 P – 20 November /08

Heuschen & Schrouff Oriëntal Foods Trading BV v Commission of the European


Communities

Appeal (T-382/04) – Remission of import duties – Commission decision – Article 239 of


the Customs Code – Existence of a special situation – Absence of deception – Obvious
negligence on the part of the importer

The appeal was dismissed

________________________________________________________________________
C-375/07 – 20 November 08

Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV.

Reference for a preliminary ruling – Validity of a classification regulation –


Interpretation of the Annex to Regulation (EC) No 1196/97 – Articles 220 and 239 of the
Customs Code – Articles 871 and 905 of Regulation (EEC) No 2454/93 – Dried sheets
consisting of rice flour, salt and water – Tariff classification – Post-clearance recovery of
import duties – Procedure for remission – Detectable error on the part of the customs
authorities – Obvious negligence on the part of the importer

1. Sheets prepared from rice flour, salt and water which are then dried, but do not
undergo any heat treatment, are covered by subheading 1905 90 20 of the Combined
Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on
the tariff and statistical nomenclature and on the Common Customs Tariff, in the version
resulting from Commission Regulation (EC) No 1624/97 of 13 August 1997.
2. Examination of the question referred has disclosed no factor of such a kind as to affect
the validity of Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the
classification of certain goods in the combined nomenclature.
3. Where an application for remission of import duties has been submitted to the
Commission of the European Communities by a Member State under Article 239 of
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community
Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament
and of the Council of 19 December 1996, and the Commission has already adopted a
decision containing assessments of fact and law in a particular case concerning import
transactions, such assessments bind all the authorities of the Member State to which that
decision was addressed, in accordance with Article 249 EC, including the courts which
have to assess that case under Article 220 of that regulation.
If the importer has, within the period prescribed in the fifth paragraph of Article 230 EC,
brought an action for annulment of a decision of the Commission of the European
Communities in respect of an application for remission of import duties pursuant to
Article 239 of that regulation, it is for the national court to decide whether to stay the
proceedings until a definitive decision has been given in the action for annulment or to
refer itself a question to the Court of Justice of the European Communities for a
preliminary ruling as to validity.
_______________________________________________________________________
C-248/07 – 6 November 08 –

Trespa International BV v Nova Haven- en Vervoerbedrijf NV

Regulation implementing the Community Customs Code – Articles 291 and 297 –
Favourable tariff treatment – End-use – Concept of ‘person importing the goods or
having them imported for free circulation’ – Concept of ‘transfer of goods within the
Community’ – Concept of ‘transferee’

Article 291(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, as amended by Commission Regulation No 89/97 of 20
January 1997, must be interpreted as meaning that the concept of ‘person importing the
goods or having them imported for free circulation’ contained therein refers to the
person for whom the goods are destined and who intends to assign them to the prescribed
end-use, irrespective of whether he makes the customs declaration himself or has that
done by a representative within the meaning of Article 5 of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code. That concept
does not refer to the representative of that person before the customs authorities,
disregarding those cases in which that person is deemed to act in his own name and on
his own behalf pursuant to the second subparagraph of Article 5(4) of Regulation No
2913/92 and who must therefore be considered an importer.
Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be
interpreted as meaning that there has been no transfer of goods within the Community in
a situation where goods are imported into Belgium then transported to the Netherlands, if
the person authorised acts on behalf of the ultimate importer, which is for the national
court to ascertain. The mere fact that the goods were imported into and cleared through
customs in Belgium then transported to the Netherlands is irrelevant to the establishment
of the existence of a transfer within the meaning of that provision. Where goods are
transferred, the transferee must hold an authorisation issued in accordance with Article
291 of that regulation.
Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be
interpreted as meaning that the concept of ‘transferee’ contained therein does not refer
to a customs agent who carries out customs formalities on behalf of the importer.
________________________________________________________________________
T-51/07 – 8 October 08 –

Agrar-Invest-Tatschl GmbH v Commission of the European Communities

Post-clearance recovery of import duties – Sugar originating from Croatia – Article


220(2)(b) of Regulation (EEC) No 2913/92 – Notice to importers published in the
Official Journal – Good faith

The applicant challenged Commission Decision C(2006) 5789 final of 4 December 2006
finding, first, that, as regards a specified amount, the subsequent entry into the accounts
of import duties was not justified and, secondly, that, as regards a further amount, the
subsequent entry into the accounts of import duties was justified and that the remission of
those duties in a particular case was not justified (request of the Republic of Austria). In
this decision directed at the Republic of Austria, the Commission came to the conclusion,
applying Regulation (EEC) No 2913/92 1 ("the Customs Code of the Communities") and
Regulation (EEC) No 2454/93, 2 that the subsequent entry into the accounts of import
duties amounting to EUR 110 937.60 should not be discounted and that the remission of
those import duties was not justified.
In support of its claim, the applicant argued that the contested decision was unlawful,
because the conditions for the discounting of the subsequent entry of the import duties in
the accounts under Article 220(2)(b) of the Customs Code of the Communities or for the
remission of the subsequently entered import duties under Article 239 of the Customs
Code of the Communities were satisfied.
The action was dismissed.
________________________________________________________________________
C-411/07 – 2 October 08

X BV v Staatssecretaris van Financiën

Common Customs Tariff – Combined Nomenclature – Tariff classification – Headings


8541, 8542 and 8543 – Optocouplers

An optocoupler, regardless of whether or not it contains an amplifying circuit, falls


within heading 8541.
_______________________________________________________________________
C-120/06 and C-121/06 (Joined cases) 9 September 2008.

Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and


Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC
(C-120/06 P), Giorgio Fedon & Figli SpA and Fedon America, Inc. (C-121/06 P)
v Council of the European Union and Commission of the European Communities.

Appeals - Recommendations and rulings of the World Trade Organisation (WTO)


Dispute Settlement Body - Determination of the Dispute Settlement Body that the
Community regime governing the import of bananas was incompatible with
WTO rules - Imposition by the United States of America of retaliatory measures
in the form of increased customs duty levied on imports of certain products from
various Member States - Retaliatory measures authorised by the WTO - No
non-contractual Community liability - Duration of the proceedings before the
Court of First Instance - Reasonable period - Claim for fair compensation.

Appeal dismissed

________________________________________________________________
C-204/07 – 25 July /08 –

C.A.S. SpA v Commission of the European Communities

Appeal (T-23/03) – EEC-Turkey Association Agreement – Regulation (EEC) No 2913/92


– Community Customs Code – Repayment and remission of import duty – Fruit juice
concentrate from Turkey – Movement certificates – Falsification – Special situation

In support of its appeal, the applicant put forward three pleas in law, alleging
infringement of its rights of defence, of Article 239 of the CCC and of Article 220(2)(b) of
the CCC respectively.
The Court, based on Article 239 of the CCC, sets aside the judgment of the Court of First
Instance of 6 February 2007 in Case T-23/03 CAS v Commission and annuls Article 2 of
the Decision of the Commission of 18 October 2002 (REC 10/01).
_______________________________________________________________________
T-165/08 – 23 July /08

Química Atlântica and Martins de Freitas Moura v Commission of the European


Communities (Unpublished)

Order of the Court – Customs union


_______________________________________________________________________
C-206/06 – 17 July /08

Essent Netwerk Noord BV v Aluminium Delfzijl BV

Internal market in electricity -– National legislation permitting the levy of a surcharge on


the price for electricity transmission in favour of a statutorily-designated company which
is required to pay stranded costs – Charges having equivalent effect to customs duties –
Discriminatory internal taxation – Aid granted by the Member States

Article 25 EC is to be construed as precluding a statutory rule under which domestic


purchasers of electricity are required to pay to their net operator a price surcharge on
the amounts of domestic and imported electricity which are transmitted to them, where
that surcharge is to be paid by that net operator to a company designated by the
legislature, with that company being the joint subsidiary of the four domestic generating
undertakings and having previously managed the costs of all the electricity generated
and imported, and where that surcharge is to be used in its entirety to pay
non-market-compatible costs for which that company is personally responsible, with the
result that the sums received by that company wholly offset the burden borne by the
domestic electricity transmitted.
The same applies where the national electricity generating undertakings are required to
bear those costs and where, by reason of existing agreements, by the payment of a
purchase price for electricity produced in the Member State, by the payment of dividends
to the various domestic electricity generating undertakings of which the designated
company is the subsidiary or by any other means, the advantage which that price
surcharge constitutes could be passed on in its entirety by the designated company to the
domestic electricity generating undertakings.
_______________________________________________________________________
C-477/07 – 9 July /08 –

N.V. Gerlach & Co v Belgische Staat Order

Preliminary ruling Hof van beroep te Antwerpen (Belgium)) - Gerlach & Co. V v
Belgische Staat of the Court

– Community Customs Code – Customs debt: Article 104(3), first ubparagraph of the
Rules of Procedure — Community Customs Code — Concepts of ‘entry in the accounts’
and ‘communication’ of the amount of duty to the debtor — Prior entry in the accounts of
the amount of the customs debt — Recovery of the customs debt.

1. Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992


establishing the Community Customs Code is to be interpreted as meaning that the ‘entry
in the accounts’ of the amount of the duty to be recovered referred to therein is the ‘entry
in the accounts’ of that amount as defined in Article 217(1) of that regulation and that
that entry in the accounts is to be distinguished from the recording of that duty in the
accounts of the own resources referred to in Article 6 of Council Regulation (EEC,
Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on
the system of the Communities' own resources. 2. Article 221(1) of Regulation No
2913/92 is to be interpreted as meaning that the communication of the amount of duty to
be recovered must have been preceded by the entry in the accounts of that amount by the
customs authorities of the Member State and that, in the absence of due notification in
accordance with that provision, that amount may not be recovered by those authorities.
However, those authorities remain entitled to proceed with a newnotification of that
amount, in accordance with the conditions laid down by that provision and the limitation
rules in force at the time the customs debt arose.

_____________________________________________________________________
C-312/07 5 June 2008.

JVC France SAS v Administration des douanes - Direction nationale du renseignement


et des enquêtes douanières.

Reference for a preliminary ruling: Tribunal d’instance du XIe arrondissement de Paris -


France.

Common Customs Tariff - Tariff classification - Combined Nomenclature - Camcorders -


Explanatory notes - Body of legal rules.

1. A camcorder may be classified under subheading 8525 40 99 of the Combined


Nomenclature in Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987
on the tariff and statistical nomenclature and on the Common Customs Tariff as
amended by Commission Regulation (EC) No 2261/98 of 26 October 1998,
Commission Regulation (EC) No 2204/1999 of 12 October 1999, Commission
Regulation (EC) No 2388/2000 of 13 October 2000 and Commission Regulation
(EC) No 2031/2001 of 6 August 2001 only if the function for recording images and
sounds from sources other than the integrated camera or microphone is active at
the time of customs clearance or if, even though the manufacturer did not intend to
promote that characteristic, that function may be activated subsequently by simple
modification of the apparatus by a user who does not have special skills, without
modification of the camcorder’s hardware. Where the camcorder is activated
subsequently, it is also necessary, first, that, once activated, it functions in a
manner similar to that of another camcorder whose function for recording images
and sounds from sources other than the integrated camera or microphone is active
at the time of customs clearance and, second, that it functions independently. The
existence of those conditions must be capable of being ascertained at the time of
customs clearance. It is for the national court to establish whether those conditions
are fulfilled. If those conditions are not fulfilled the camcorder must be classified
under subheading 8525 40 91 of the Combined Nomenclature.

2. The explanatory notes to that Combined Nomenclature relating to subheading 8525


40 99, published on 6 July 2001 and 23 October 2002, are interpretative in
character and do not have legally binding force. They are in accordance with the
wording of the Combined Nomenclature and do not alter its scope. It follows that
the adoption of a new classification regulation was not necessary.

_____________________________________________________________________
C-165/07 – 22 May 08 –

Skatteministeriet v Ecco Sko A/S

Common Customs Tariff – Combined Nomenclature – Tariff classification – Heading 6403 –


Footwear with uppers of leather – Heading 6404 – Footwear with uppers of textile materials

1. The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No


2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulation (EC) No 2388/2000 of 13
October 2000, must be interpreted as meaning that a sandal such as that in question in
the main proceedings, with an outer sole of rubber, whose upper is made up of two
leather sections glued to the inner sole and linked to each other by leather fastening
straps covered with Velcro strips, with the leather making up around 71% of the upper’s
external surface area and the elastic textile material underneath the leather remaining
exposed in places, falls within:
– heading 6404 of the Combined Nomenclature if the textile material of the upper of the sandal,
without the leather sections, fulfils the purpose of an upper, that is to say, provides sufficient
support for the foot to enable the wearer to walk in the sandal; – heading 6403 of the
Combined Nomenclature if the textile material of the upper of the sandal, without the leather
sections, does not fulfil the purpose of an upper, that is to say, does not provide sufficient
support for the foot to enable the wearer to walk in the sandal.

2. Additional Note 1 to Chapter 64 of the Combined Nomenclature, inserted by


Commission Regulation (EEC) No 3800/92 of 23 December 1992 amending Regulation
No 2658/87, is compatible with Note 4(a) to that chapter.
___________________________________________________________________
C-230/06. 3 April 2008.

Militzer & Münch GmbH v Ministero delle Finanze.

Reference for a preliminary ruling: Corte suprema di cassazione - Italy.

Customs union - Community transit - Recovery of a customs debt - Competent Member


State - Proof of the regularity of the operation or of the place of the offence - Time-limits
- Liability of the principal.

1. In order to verify whether the Member State which recovered customs duties has
jurisdiction, it is for the referring court to determine whether, at the time when it came
to light that the consignment had not been presented at the office of destination, it was
possible to establish the place where the offence or irregularity occurred. If that is the
case, the Member State in which the first offence or irregularity capable of being
classified as a removal from customs surveillance was committed can be identified as
the State with jurisdiction to recover the customs debt, pursuant to Articles 203(1) and
215(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code. On the other hand, if the place where the offence or
irregularity was committed cannot be thus established, the Member State to which the
office of departure belongs has jurisdiction to recover the customs duties, in accordance
with Articles 378 and 379 of Commission Regulation (EEC) No 2454/93 of 2 July 1993
laying down provisions for the implementation of Regulation No 2913/92.

2. Where a consignment has not been presented at the office of destination and the place
of the offence or irregularity cannot be established, it is for the office of departure alone
to make the notification required within the 11-month and 3-month time-limits laid down
by Article 379(1) and (2) of Regulation No 2454/93.
3. It is not contrary to the principle of proportionality to hold a customs clearance agent,
in his capacity as principal, liable for a customs
______________________________________________________________________
C-263/06, 28 February 2008.

Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione


Adriatica di Sicurtà SpA.

Reference for a preliminary ruling: Corte suprema di cassazione - Italy.

Common commercial policy - Protection against dumping - Anti-dumping duty -


Hematite pig iron originating in Russia - Decision No 67/94/ECSC - Determination of
customs value for purposes of the application of a variable anti-dumping duty -
Transaction value - Successive sales at different prices - Whether the customs authority
may take into consideration the price indicated in a sale of goods effected prior to that on
the basis of which the customs declaration was made.

In accordance with Article 1(2) of Commission Decision No 67/94/ECSC of 12 January


1994 imposing a provisional anti-dumping duty on imports into the Community of
hematite pig iron, originating in Brazil, Poland, Russia and Ukraine, the customs
authorities may not determine the customs value for the purpose of applying the
anti-dumping duty established by that decision on the basis of the price indicated for the
goods concerned in a sale prior to that on the basis of which the customs declaration was
made when the declared price corresponds to the price actually paid or payable by the
importer.

If the customs authorities have reasonable doubts as to the accuracy of the declared
value and their doubts are confirmed after they have asked for additional
information or documents and have provided the person concerned with a
reasonable opportunity to respond to the grounds for those doubts, without it being
possible to determine the price actually paid or payable, they may, in accordance
with Article 31 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, calculate the customs value for the
purpose of applying the anti-dumping duty established by Decision No 67/94 by
reference to the price agreed for the goods in question in the most recent sale prior
to that on the basis of which the customs declaration was made and in regard to
which the customs authorities have no objective reason to doubt its accuracy.

__________________________________________________________________
C-398/05. 28 February 2008.

AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen.

Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

Common commercial policy - Countervailing duties - Protection against subsidies -


Regulation (EC) No 1599/1999 - Stainless steel wires - Injury to the Community industry
- Causal link.

Consideration of the question referred has disclosed nothing capable of affecting the
validity of Council Regulation (EC) No 1599/1999 of 12 July 1999 imposing a definitive
countervailing duty and collecting definitively the provisional duty imposed on stainless
steel wires with a diameter of 1 mm or more originating in India and terminating the
proceeding concerning imports of stainless steel wires with a diameter of 1 mm or more
originating in the Republic of Korea.

_________________________________________________________________
C-262/07 – 19 February 08 –

Tokai Europe GmbH v Commission of the European Communities

Appeal (T-183/04) - Regulation (EC) No 384/2004 - Classification of certain goods in the


Combined Nomenclature - Appeal in part manifestly inadmissible and in part manifestly
unfounded Requirement to be individually concerned by the contested regulation - Right
to a fair hearing

In support of its appeal, the applicant raised complaints, which relate to the infringement
by the order under appeal of procedural requirements of Community law, by which its
interests were prejudiced and which went so far as to affect the content of the order
under appeal. They related to the observance of the right to be heard and measures of
inquiry.
The appeal was dismissed.

_________________________________________________________________
T-82/06 – 19 February 08 –

Apple Computer International v Commission of the European Communities

Actions for annulment - Common Customs Tariff - Classification in the Combined


Nomenclature - Person not individually concerned – Inadmissibility

The applicant is concerned by the contested regulation only in its objective capacity as
an importer of LCD monitors such as those referred to in the table annexed to that
regulation, in the same way as any operator, actually or potentially, in an identical
situation.
It follows that the contested regulation is not of individual concern to the applicant and
that the action must therefore be dismissed as inadmissible.
_________________________________________________________________
C-62/06 – 18 December 07 –

Fazenda Pública/Director Geral das Alfândegas v ZF Zefeser / Importação e Exportação


de Produtos Alimentares Lda

Regulation (EEC) No 1697/79 – Article 3 – Post-clearance recovery of import duties – Act


that could give rise to criminal court proceedings – Competent authority for classifying the
act
Classification of an act as ‘an act that could give rise to criminal court proceedings’
within the meaning of the first paragraph of Article 3 of Council Regulation (EEC) No
1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties
which have not been required of the person liable for payment on goods entered for a
customs procedure involving the obligation to pay such duties, falls within the competence
of the customs authorities required to determine the exact amount of the import duties or
export duties in question.

___________________________________________________________________
C-526/06 – 13 December 07 –

Staatssecretaris van Financiën v Road Air Logistics Customs BV

Community Customs Code and implementing regulation – Community transit – Offence


– Proof of the regularity of the transit operation or of the place of the offence – Failure to
grant a period of three months in which to furnish such proof – Repayment of customs
duties – Concept of ‘legally owed’

Article 236(1), first subparagraph, of Council Regulation (EEC) No 2913/92 of 12


October 1992 establishing the Community Customs Code must be interpreted to mean
that the failure of the national customs authorities to determine, in accordance with
Article 379 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92, the place
where the customs debt was incurred does not have the effect of rendering the amount of
customs duties not legally owed.
Nevertheless, the Member State to which the office of departure belongs can proceed to
recovery of import duties only if, pursuant to Article 379(2) of Regulation No 2454/93, it
has first informed the principal that it has a period of three months in which to furnish
proof of the place where the infringement or the irregularity was actually committed and
such proof has not been provided within that period.
_______________________________________________________________________
C-372/06 13 December 2007.

Asda Stores Ltd v Commissioners of Her Majesty’s Revenue and Customs.

Reference for a preliminary ruling: VAT and Duties Tribunal, London - United Kingdom.

Community Customs Code - Implementing measures - Regulation (EEC) No 2454/93 -


Annex 11 - Non-preferential origin of goods - Television receivers - Concept of
substantial processing or working - Added value test - Validity and interpretation -
EEC-Turkey Association Agreement and Decision No 1/95 of the Association Council -
Interpretation

1. Examination of the first question has disclosed nothing capable of affecting the validity
of the provisions in column 3 under heading 8528 of the Combined Nomenclature,
mentioned in Annex 11 to Commission Regulation (EEC) No 2454/93 of 2 July 1993
laying down provisions for the implementation of Council Regulation (EEC) No 2913/92
establishing the Community Customs Code.

2. The provisions in column 3 under heading 8528 of the Combined Nomenclature,


mentioned in Annex 11 to Regulation No 2454/93 must be interpreted as meaning that, in
calculating the value acquired by colour television receivers on their manufacture in
circumstances such as those at issue in the main proceedings, there is no cause to
determine separately the non-preferential origin of a distinct part, such as a chassis.

3. The provisions of Article 44 of Decision No 1/95 of the EEC-Turkey Association


Council of 22 December 1995, which laid down the conditions for the entry into force of
the final phase of the Customs Union, read in conjunction with those of Article 47(1) to
(3) of the Additional Protocol, signed on 23 November 1970 in Brussels and concluded,
approved and confirmed on behalf of the Community by Council Regulation (EEC) No
2760/72 of 19 December 1972, annexed to the Agreement establishing an Association
between the European Economic Community and Turkey signed at Ankara on 12
September 1963 by the Republic of Turkey, on the one part, and by the Member States of
the EEC and the Community, on the other part, and concluded, approved and confirmed
on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, and
the provisions of Articles 45 and 46 of the said Decision No 1/95 do not have direct effect
before national courts and do not therefore allow individual operators validly to plead
their infringement in order to resist payment of anti-dumping duties normally due. The
provisions of Article 47 of Decision No 1/95 have direct effect and the individuals to
whom they apply have the right to rely on them before the courts of the Member States.

4. The provisions of Article 47 of Decision No 1/95 must be interpreted as not requiring


that the information which the contracting parties which adopted anti-dumping measures
must provide to the Customs Union Joint Committee pursuant to Article 46 of Decision
No 1/95 or to the Association Council pursuant to Article 47(2) of the Additional
Protocol, must be brought to the knowledge of operators.

___________________________________________________________________
C-161/06 – 11 December 07 –

Skoma-Lux v Celní øeditelství Olomouc

Act concerning the conditions of accession to the European Union – Article 58 –


Community legislation – No translation into the language of a Member State –
Enforceability
Article 58 of the Act concerning the conditions of accession to the European Union
of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic
of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and
the adjustments to the Treaties on which the European Union is founded, precludes
the obligations contained in Community legislation which has not been published in
the Official Journal of the European Union in the language of a new Member State,
where that language is an official language of the European Union, from being
imposed on individuals in that State,even though those persons could have learned of
that legislation by other means.
In holding that a Community regulation which is not published in the language of a
Member State is unenforceable against individuals in that State, the Court is
interpreting Community law for the purposes of Article 234 EC.
C-505/06 – 7 December 07 –

Agenzia Dogane Circoscrizione Doganale di Genova v Euricom SpA

First paragraph of Article 104(3) of the Rules of Procedure – Community Customs Code
– Inward processing – Association Agreement – Prior export of rice to a non-member
country bound by a preferential customs agreement – Article 216 of the Customs Code

Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the
European Parliament and of the Council of 16 November 2000 is applicable to the
inward processing operations referred to in Article 115(1)(b) of that regulation in which
compensating products have been exported from the Community before importation of
the import goods.
_______________________________________________________________________
C-486/06 – 6 December 07 –

BVBA Van Landeghem v Belgische Staat

Common Customs Tariff – Combined Nomenclature – Tariff classification – Headings


87.03 and 87.04 – Pick-up type motor vehicle

Pick-ups such as those at issue in the main proceedings which consist, on the one hand,
of an enclosed cabin for use as a passenger compartment, there being, behind the
driver’s seat, folding or removable seats with three-point safety belts, and, on the other
hand, of a load space which is separated from the cabin, is not higher than 50
centimetres, can be opened only at the rear and has no facilities for attaching a load,
which have a luxurious full-option interior (including electrically adjustable leather
seats, electrically operated mirrors and windows and a stereo with a CD player), and
which are equipped with an anti-lock braking system (ABS), an automatic, 4 to 8-litre,
very high-consumption petrol engine, four-wheel drive and luxurious (sports) rims, must
be classified, according to their general appearance and the entirety of their
characteristics, under heading 87.03 of the Combined Nomenclature as set out in Annex I
to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff as amended by the annexes to
Commission Regulation (EC) No 3115/94 of 20 December 1994, Commission Regulation
(EC) No 3009/95 of 22 December 1995 and Commission Regulation (EC) No 1734/96 of
9 September 1996.
_______________________________________________________________________
C-221/06 – 8 November 07

Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH v Bundesminister für


Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

Reference for a preliminary ruling – Levy on the long-term depositing of waste at a waste
disposal site – Levy payable by the operator of the waste disposal site and calculated
according to the weight of the waste being deposited and the state of the waste disposal
site – Exemption from the levy in respect of the deposit of waste from contaminated sites
in Austria – No exemption for the deposit of waste from contaminated sites located in
other Member States – Article 90 EC – Internal taxation – Discrimination

By the first part of its question, the national court seeks to ascertain whether a national
levy such as the Altlastenbeitrag constitutes a charge having equivalent effect to a
customs duty on imports within the meaning of Articles 23 EC and 25 EC or internal
taxation which is discriminatory and, therefore, contrary to Article 90 EC.
It must first be borne in mind that EC Treaty provisions relating to charges having
equivalent effect and those relating to discriminatory internal taxation cannot be applied
together, so that under the system of the Treaty the same measure cannot belong to both
categories at the same time.
As regards Articles 23 EC and 25 EC, it is settled case-law that any pecuniary charge,
however small and whatever its designation and mode of application, which is imposed
unilaterally on goods by reason of the fact that they cross a frontier, and which is not a
customs duty in the strict sense, constitutes a charge having equivalent effect within the
meaning of Articles 23 EC and 25 EC.
In the light of that definition and as regards the characteristics of the Altlastenbeitrag, it
should be noted that all long-term depositing of waste is in principle subject to payment
of that levy, whether the waste comes from Austria or another Member State. A levy such
as the Altlastenbeitrag is not therefore charged because a border of the Member State
which imposed that levy has been crossed.
Whether such a levy is consistent with Community law cannot therefore be assessed in
the light of Articles 23 EC and 25 EC.

_______________________________________________________________________
C-173/06 – 18 October 07 –

Agrover Srl v Agenzia Dogane Circoscrizione Doganale di Genova

Community Customs Code – Inward processing – Association agreement – Prior


exportation of rice to a non-member country bound by a preferential customs agreement
– Article 216 of the Customs Code – Subsequent recovery of import duties – Article
220(2)(b) of the Customs Code

Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the
European Parliament and of the Council of 16 November 2000, applies to the inward
processing operations referred to in Article 115(1)(b) of that regulation in which the
compensating products have been exported outside the European Community prior to
importation of import goods.
Where, at the time of discharge of an inward processing operation (suspension system)
with equivalent compensation and prior exportation, the competent authorities have not
contested, on the basis of Article 216 of Regulation No 2913/92, as amended by
Regulation No 2700/2000, the exemption from import duties of the goods of non-member
country origin, they must waive subsequent entry in the accounts of those import duties,
pursuant to Art 220(2)(b) of that regulation, if three cumulative conditions are fulfilled.
First, it is necessary that those duties were not levied as a result of an error on the part of
the competent authorities themselves, secondly, that that error was such that it could not
reasonably have been detected by a person liable for payment acting in good faith and,
finally, that that person complied with all the provisions laid down by the legislation in
force as regards the customs declaration. It is for the national court to assess whether
that is the case in the circumstances in the main proceedings, on the basis of all the
concrete aspects of the case before it, and in particular the evidence adduced for that
purpose by the applicant in the main proceedings.
_______________________________________________________________________
C-464/06 – 18 October 07

Avena Nordic Grain Oy

Agriculture – System of export refunds on agricultural products – Regulation (EC) No


800/1999 – Article 5 – Lodging the export declaration – Transmission by fax

Article 5 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down


common detailed rules for the application of the system of export refunds on agricultural
products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001,
must be interpreted as not precluding the competent customs authorities from accepting
an export declaration for agricultural products which was transmitted by fax, where that
transmission took place before loading for export transport, where the declaration
transmitted contains all the information necessary to enable physical checks to be carried
out on the goods exported and the export operation concerned is not vitiated by any fraud
or attempted fraud. Such is the case where the goods covered by the export declaration
transmitted by fax have arrived in the third country of destination and the original
declaration subsequently transmitted is identical to the declaration transmitted by fax. It
is for the national court to ascertain whether those conditions are satisfied in the main
proceedings.
_______________________________________________________________________
C-62/05 P – 18 October 07 –

Nordspedizionieri di Danielis Livio & C. Snc, Livio Danielis and Domenico


D’Alessandro v Commission of the European Communities

Appeal (T-332/02) – Regulation (EEC) No 1430/79 – Remission of import duties –


Consignment of cigarettes destined for Spain – Fraud committed in a Community transit
operation

The appeal was dismissed.

_______________________________________________________________________
C-19/05 – 18 October 07

Commission of the European Communities v Kingdom of Denmark

Failure of a Member State to fulfil obligations – Communities’ own resources – Customs


duties legally owed not recovered following an error by the national customs authorities –
Financial liability of the Member States

Member States are required to establish the Communities’ own resources as soon as
their own customs authorities have the necessary particulars and, therefore, are in a
position to calculate the amount of duties arising from a customs debt and determine the
debtor, regardless of whether the criteria for the application of Article 220(2)(b) of the
Customs Code are met and therefore whether or not it is possible to proceed with a
subsequent entry in the accounts or post-clearance recovery of the customs duties in
question. In those circumstances, a Member State which fails to establish the
Communities’ own resources and to make the corresponding amount available to the
Commission, without any of the conditions laid down in Article 17(2) of Regulation No
1552/89 being met, falls short of its obligations under Community law, in particular
Articles 2 and 8 of Decision 94/728.

In the present case, it is common ground that the Danish authorities failed to collect
import duties due in respect of the period between 1 January 1994 and 31 December
1997 inclusive because of their own error. That error led them not to make a subsequent
entry in the accounts and recovery of those duties in accordance with Article 220(2)(b) of
the Customs Code.

Since it was thus established subsequently that a condition laid down for the grant of
benefit under the end-use scheme was not fulfilled, Article 204(2) of the Customs Code
fixes the point at which the importing undertaking’s customs debt arose at the time when
the goods were placed under that scheme. After the withdrawal, from 31 December 1997,
of the licence granted to it during 1990 under that scheme, the importing undertaking
could not retroactively obtain a licence under the inward processing scheme.
Accordingly the question whether, in 1990, the undertaking could have met the conditions
required to obtain a licence under the latter scheme and, if so, whether the Community
would have had grounds to seek to have own resources made available in the absence of
any harm to its financial interests is irrelevant.

In that regard, it is necessary, in any event, to recall that a failure to comply with an
obligation imposed by a rule of Community law is itself sufficient to constitute a breach,
and the fact that such a failure had no adverse effects is irrelevant.

As to Article 10 EC, also relied on by the Commission, there are no grounds for holding
that there has been a failure to fulfil the general obligations contained in that article
which is separate from the established failure to fulfil the more specific Community
obligations by which the Kingdom of Denmark was bound under, inter alia, Articles 2
and 8 of Decision 94/728.It must accordingly be held that, by failing to make available to
the Commission an
amount of DKK 18 687 475 in own resources, together with default interest thereon
calculated as from 27 July 2000, the Kingdom of Denmark has failed to fulfil its
obligations under Community law and, in particular, under Articles 2 and 8 of Decision
94/728.

________________________________________________________________________
____________
C-208/06 and C-209/06 – 27 September 07

Medion AG (C-208/06) v Hauptzollamt Duisburg, and Canon Deutschland GmbH


(C-209/06) v Hauptzollamt Krefeld

Common Customs Tariff – Tariff classification – Combined Nomenclature – Camcorders

A camcorder may be classified under subheading 8525 40 99 of the Combined


Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on
the tariff and statistical nomenclature and on the Common Customs Tariff, as amended
by Commission Regulation (EC) No 2263/2000 of 13 October 2000, Commission
Regulation (EC) No 2031/2001 of 6 August 2001, and Commission Regulation (EC) No
1789/2003 of 11 September 2003, only if the function for recording images and sounds
from sources other than the integrated camera or microphone is active at the time of
customs clearance or if, even though the manufacturer did not intend to emphasise that
characteristic, that function may be activated subsequently by simple modification of the
apparatus by a user who does not have special skills, without modification of the
camcorder’s hardware. Where the camcorder is activated subsequently, it is also
necessary, first, that, once activated, it functions in a manner similar to that of another
camcorder whose function for recording images and sounds from sources other than the
integrated camera or microphone is active at the time of customs clearance and, second,
that it functions independently. The existence of those conditions must be capable of
being ascertained at the time of customs clearance. It is for the national court to establish
whether those conditions are fulfilled. If those conditions are not fulfilled the camcorder
must be classified under subheading 8525 40 91 of the Combined Nomenclature.
________________________________________________________________________
C-400/06 – 13 September 07

Codirex Expeditie BV v Staatssecretaris van Financiën

Common Customs Tariff – Combined Nomenclature – Tariff classification – Subheading


0202 30 50 – Cuts of frozen boned meat from a part of the forequarter of bovine animals

1. Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2204/1999 of 12 October 1999, must be interpreted as meaning that
pieces of frozen boned meat from the forequarter part of the bovine animal come under
subheading 0202 30 50 of the Combined Nomenclature.
2. Annex I to Regulation No 2658/87, as amended by Regulation No 2204/1999, must be
interpreted as meaning that pieces of frozen boned meat from the forequarter of the
bovine animal do not have to satisfy any other conditions, and in particular, do not have
to come from the same animal, in order to be classified under subheading 0202 30 50. _

_______________________________________________________________________
C-443/05 P – 13 September 07

Common Market Fertilizers SA v Commission of the European Communities

Appeal (T-134/03 and T-135/03) – Anti-dumping duties – Article 239 of the Customs
Code – Remission of import duties – First paragraph of Article 907 of Regulation (EEC)
No 2454/93 – Interpretation – Legality – Commission decision – Group of experts
meeting in the framework of the Customs Code Committee – Distinct entity in functional
terms – Articles 2 and 5(2) of Council Decision 1999/468/EC – Article 4 of the rules of
procedure of the Customs Code Committee – Conditions for the application of Article
239 of the Customs Code – No obvious negligence

In support of its appeal, the appellant pointed out four errors of law made by the Court of
First Instance consisting in:
- an incomplete presentation of the legal context resulting in a misinterpretation of
Regulation No 3319/941 as to the conditions required to impose a specific duty, and an
incorrect legal interpretation of the nature of the committee consulted;
- an incomplete presentation of the facts resulting in a clear distortion of those facts, and
a misapplication of Regulation No 3319/94 as to whether there is a situation of indirect
invoicing;
- an incorrect legal interpretation as regards the infringement of essential procedural
requirements and specifically as regards the legal nature of the committee consulted;
andan incorrect legal interpretation as regards the conditions for application of Article
239 of the Community Customs Code2 and specifically as regards the application of the
condition of no obvious negligence. The appeal was dismissed.
C-402/06 – 18 July 07 –

Op- en Overslagbedrijf Van der Vaart BV v Staatssecretaris van Financiën

Common Customs Tariff - Tariff classification - Combined Nomenclature - Product


obtained from curdled milk and the extraction of a significant quantity of serum

Heading 0406 of the Combined Nomenclature, set out in Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1734/96 of 9
September 1996, must be construed in such a way that it can accommodate the
classification of a product, such as that in issue in the main proceedings, obtained from
curdled milk from which a great deal of the serum has been extracted and the albumin
content of which has been reduced, by the effect of an enzyme, to 2% of the total quantity
of the albumins during a drying process lasting 24 to 36 hours and consisting of casein
and more than 50% humidity.
Subheading 0406 20 90 of the Combined Nomenclature must be construed in such a way
that it can accommodate a product, such as that in issue in the main proceedings, which
contains more than 50% humidity and less than 1% fat and is ground into regular
granules of 2 to 4 mm in size and is intended for use in the manufacture of pizza toppings
and in the preparation of cheese sauces.

_______________________________________________________________________
C-310/06 – 18 July 07 –

F.T.S. International BV v Belastingdienst/Douane West

Common Customs Tariff – Combined Nomenclature – Classification – Boneless chicken


cuts, frozen and impregnated with salt – Validity of Regulation (EC) No 1223/2002

Commission Regulation (EC) No 1223/2002 of 8 July 2002 concerning the classification


of certain goods in the Combined Nomenclature is invalid.
_______________________________________________________________________
C-142/06 – 18 July /07 –

Olicom A/S v Skatteministeriet

Common Customs Tariff – Tariff headings – Classification in the combined


nomenclature – Automatic data processing machines – Combined network/modem cards
– Definition of ‘specific function’

Combined cards designed to be inserted into portable computers must, after 1 January
1996, be classified as data-processing machines under heading No 8471 of the Combined
Nomenclature of the Common Customs Tariff, contained in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
3009/95 of 22 December 1995.
_______________________________________________________________________
C-173/05 – 21 June 07

Commission of the European Communities v Italian Republic

Failure of a Member State to fulfil obligations – Articles 23 EC, 25 EC and 133 EC –


EEC-Algeria Cooperation Agreement – Environmental protection tax on gas pipelines
installed in the Sicilian Region – Charge having equivalent effect to a customs duty

By introducing an environmental tax on methane gas from Algeria, the Italian Republic
has failed to fulfil its obligations under Articles 23 EC, 25 EC and 133 EC and under
Article 9 of the Cooperation Agreement.
_______________________________________________________________________
C-56/06 – 14 June 07

Euro Tex Textilverwertung GmbH v Hauptzollamt Duisburg

Association between the European Communities and their Member States and the
Republic of Poland – Concept of ‘originating products’ – Used clothing

Since Article 7(1)(b) of Protocol 4 to the Europe Agreement establishing an association


between the European Communities and their Member States, of the one part, and the
Republic of Poland, of the other part, as amended by Decision No 1/97 of the Association
Council, Association between the European Communities and their Member States, of the
one part, and the Republic of Poland, of the other part, of 30 June 1997 does not make it
possible to draw a distinction between simple and more complex matching operations,
matching operations such as those described in the order for reference are covered by
the concept of simple operations of matching for the purposes of that provision.
_______________________________________________________________________
C-420/05 P – 15 May 07 –

Ricosmos BV v Commission of the European Communities.

Appeal (T-53/02)- Customs code - External Community transit operation - Remission of


import duties - Conditions - Compliance with time-limits - Compliance with the rights of
the defence - Principle of proportionality - Notion of manifest negligence - Appeal
manifestly inadmissible in part and manifestly unfounded in part
Appeal brought against the judgment of the Court of First Instance (First Chamber) of 13
September 2005, by which the Court of First Instance dismissed the application for
annulment of Commission Decision REM 09/00 of 16 November 2001 informing the
Netherlands authorities that there were no grounds for remission of import duties in
respect of a consignment of cigarettes intended for the Czech Republic on the ground that
fraud committed by third parties in the course of an external Community transit
operation does not constitute a special situation justifying remission of the import duties.
The appeal is dismissed.

_______________________________________________________________________
C-229/06 – 19 April 07 –

Sunshine Deutschland Handelsgesellschaft mbH v Hauptzollamt Kiel

Common Customs Tariff – Tariff classification – Combined Nomenclature – Pumpkin seeds


which have lost their ability to germinate

Subheading 1212 99 80 of the Combined Nomenclature in Annex I to Council Regulation


(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of
11 September 2003, must be interpreted as meaning that shelled pumpkin seeds which
have lost their ability to germinate and which are intended for use in the baking industry
come under that subheading.
_______________________________________________________________________
C-44/06 – 8 March 07 –

Gerlach & Co. mbH v Hauptzollamt Frankfurt (Oder)

Customs union – Community transit – Proof of the regularity of a transit operation or of


the place of the offence – Three-month period – Period granted subsequent to the
decision to recover the import duties

Article 11a(2) of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on


provisions for the implementation of the Community transit procedure and for certain
simplifications of that procedure, as amended by Commission Regulation (EEC) No
1429/90 of 29 May 1990, must be interpreted as meaning that the Member State to which
the office of departure belongs cannot grant to the principal the three-month period to
enable it to provide proof of the regularity of the transit operation or proof of the place
where the offence or irregularity was actually committed after the decision has been
taken to proceed to recovery of the import duties, during the proceedings relating to a
complaint lodged against that decision.

_______________________________________________________________________
C-447/05 and C-448/05 – 8 March 07 –

Thomson Multimedia Sales Europe (C-447/05) and Vestel France (C-448/05) v


Administration des douanes et droits indirects

Community Customs Code – Implementing measures – Regulation (EEC) No 2454/93 –


Annex 11 – Non-preferential origin of goods – Television receivers – Concept of
substantial processing or working – Criterion of added value – Validity

Consideration of the questions raised has disclosed nothing capable of affecting the
validity of the provisions in column three, under heading 8528 of the Combined
Nomenclature, set out in Annex 11 to Commission Regulation (EEC) No 2454/93 of 2
July 1993 laying down provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code.

_______________________________________________________________________
C-183/06 – 15 February 07

RUMA GmbH v Oberfinanzdirektion Nürnberg

Common Customs Tariff – Combined Nomenclature – Tariff classification – Heading


8529 – Subheading 8529 90 40 – Keypad membrane for mobile telephones

The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23


July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff,
as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, must
be interpreted as meaning that keypad membranes of polycarbonate which have moulded
keys on their upper side and non-conductive contact pins on their underside and are
intended for incorporation into mobile telephones are covered by subheading 8529 90
40.
_______________________________________________________________________
C-313/05 – 18 January 07

Maciej Brzeziñski v Dyrektor Izby Celnej w Warszawie

Internal taxation – Taxes on motor vehicles – Excise duties – Second-hand vehicles –


Import

An excise duty such as that introduced in Poland by the 2004 Law, which does not affect
passenger vehicles by reason of the fact that they cross the frontier, is not a customs duty
on import or a charge having equivalent effect within the meaning of Article 25 EC.

_______________________________________________________________________
C-400/05 – 11 January 07

B.A.S. Trucks BV v Staatssecretaris van Financiën

Common Customs Tariff – Combined Nomenclature – Tariff classification – Subheading


8704 10 – Vehicle designed for use on construction sites for the transport and unloading
of materials and also for use on the highway

Subheading 8704 10 of the combined nomenclature, in Annex I to Council Regulation


(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 2261/98 of 26
October 1998, must be interpreted as meaning that it covers dumpers within the meaning
of that subheading which are designed specifically and primarily for use off paved, public
roads. The fact that dumper trucks have distinctive characteristics which enable them to
be driven, incidentally, on paved, public roads does not preclude their classification as
dumpers within the meaning of that subheading.
_______________________________________________________________________
C-40/06 – 9 January /07 –

Juers Pharma Import-Export GmbH v Oberfinanzdirektion Nürnberg

First subparagraph of Article 104(3) of the Rules of Procedure – Common Customs


Tariff – Combined Nomenclature – Tariff classification – Capsules containing primarily
melatonin – Medicaments

The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23


July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff,
as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, must
be interpreted as meaning that capsules containing primarily melatonin such as those in
issue in the main proceedings fall under tariff heading 3004.
_______________________________________________________________________
C-407/05 – 6 April /06 –

Reyniers & Sogama BVBA v Belgisch Interventie- en Restitutiebureau, Belgische Staat

Order of the Court – Recovery of import duties – Proof of the regularity of the operation
or of the place of the offence or irregularity – Consequence of the lack of notification to
the principal of the period for furnishing such proof

Article 36(3) of Council Regulation (EEC) No 222/77 of 13 December 1976 on


Community transit, as amended by Council Regulation (EEC) No 474/90 of 22 February
1990, with a view to abolishing lodgement of the transit advice note on crossing an
internal frontier of the Community, read in conjunction with Article 11a of Commission
Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of
the Community transit procedure and for certain simplifications of that procedure, as
amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990, and Article 34
of Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit,
read in conjunction with Article 49 of Commission Regulation (EEC) No 1214/92 of 21
April 1992 on provisions for the implementation of the Community transit procedure and
for certain simplifications of that procedure, must be interpreted as meaning that the
office of departure must notify to the declarer the period of three months in which proof
of the regularity of the transit operation or of the place where the offence or the
irregularity was actually committed may be furnished to that office, to the satisfaction of
the competent authorities, so that the competent authority can proceed with recovery only
after having expressly indicated to the declarer that the latter has three months in which
to furnish that proof, and that that proof has not been furnished within that period.
_______________________________________________________________________
C-290/05 and C-333/05 – 5/10/06 –

Ákos Nádasdi (C-290/05) v Vám- és Pénzügyõrség Észak-Alföldi Regionális


Parancsnoksága, and Ilona Németh (C-333/05) v Vám- és Pénzügyõrség Dél-Alföldi
Regionális Parancsnoksága

Internal taxation – Registration duty on motor vehicles – Used motor vehicles –


Importation

A tax such as that imposed in Hungary by Law No CX of 2003 on registration duty (a


regisztrációs adóról szóló 2003. évi CX. törvény), which does not apply to private motor
vehicles by reason of the fact that they cross the frontier, does not constitute a customs
duty on imports or a charge having equivalent effect within the meaning of Articles 23
EC and 25 EC.
_______________________________________________________________________
C-281/05 – 9/11/06 –

Montex Holdings Ltd v Diesel Spa

Trade marks – Directive 89/104/EEC – Right of the proprietor of a trade mark to prohibit
the transit of goods bearing an identical sign through the territory of a Member State in
which the mark enjoys protection – Unlawful manufacture – Associated State

1. Article 5(1) and (3) of First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade marks is to be interpreted as
meaning that the proprietor of a trade mark can prohibit the transit through a Member
State in which that mark is protected (the Federal Republic of Germany in the present
case) of goods bearing the trade mark and placed under the external transit procedure,
whose destination is another Member State where the mark is not so protected (Ireland in
the present case), only if those goods are subject to the act of a third party while they are
placed under the external transit procedure which necessarily entails their being put on
the market in that Member State of transit.
2. It is in that regard, in principle, irrelevant whether goods whose destination is a
Member State come from an associated State or a third country, or whether those goods
have been manufactured in the country of origin lawfully or in infringement of the
existing trade mark rights of the proprietor in that country. _______________________
C-250/05 – 26/10/06 –

Turbon International GmbH v Oberfinanzdirektion Koblenz,

Common Customs Tariff – Tariff headings – Classification in the Combined


Nomenclature of ink cartridges compatible with Epson Stylus Color printers – Inks
(heading 3215) – Parts and accessories of machines of heading 8471 (heading 8473)

Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical


nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1734/96 of 9 September 1996, must be interpreted as meaning that
an ink cartridge without an integrated print head consisting of plastic casing, foam, a
metal screen, seals, tape seal, labels, ink and packing material, which, as regards both
the cartridge and the ink, can only be used in a printer with the same characteristics as
Epson Stylus Color inkjet printers, must be classified under subheading 3215 90 80 of the
Combined Nomenclature.
_______________________________________________________________________
C-196/05 – 8/6/06 –

Sachsenmilch AG v Oberfinanzdirektion Nürnberg

Common Customs Tariff – Tariff classification – Combined Nomenclature – Subheading


0406 10 (fresh cheese) – Annex I to Regulation (EEC) No 2658/87 as amended by
Regulation (EC) No 1832/2002 – Tariff classification of pizza mozzarella in block form
that has been stored after its manufacture for one to two weeks at a low temperature

Subheading 0406 10 of the Combined Nomenclature in Annex I to Council Regulation


(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1832/2002 of
1 August 2002, must be interpreted as meaning that it applies to pizza mozzarella in
block form that was stored after its manufacture for one to two weeks at 2 to 4°C unless
that storage is sufficient for such mozzarella to undergo a process at the end of which it
has acquired one or more new objective characteristics or properties, in particular with
regard to its composition, appearance or taste. It is for the national court to determine
whether those conditions are satisfied.
_______________________________________________________________________
C-140/05 – 5/10/06 –

Amalia Valeško v Zollamt Klagenfurt

Act of Accession to the European Union – Transitional measures – Annex XIII – Taxation –
Cigarettes imported from Slovenia – Import into Austria in travellers’ personal luggage –
Exemption from excise duty limited to certain quantities – Possibility of maintaining until 31
December 2007 the quantitative limits applied to imports from third countries – Directive
69/169/EEC

Articles 23 EC, 25 EC and 26 EC must be interpreted as meaning that they do not prohibit
national legislation such as that at issue in the main proceedings, under which the exemption
from excise duty for cigarettes imported in travellers’ personal luggage is limited to 25 units on
entry to the Republic of Austria from certain other Member States, in particular the Republic of
Slovenia, notwithstanding the fact that, following the last enlargement of the European Union,
that reduced exemption no longer applies to any third country with the sole exception of the
Swiss Samnauntal customs enclave, since imports of cigarettes from third countries generally
benefit from an exemption for 200 units.
_______________________________________________________________________
C-100/05 – 5/10/06 –

ASM Lithography BV v Inspecteur van de BelastingdienstDouane Zuid/kantoor


Roermond

Customs Code – Determination of the customs debt – Import duties on compensating


products determined by the person concerned and confirmed by the customs authorities
under Article 121 of the Customs Code – Duties which can be calculated in accordance
with Article 122(c) of the Customs Code – Repayment of the amount levied in excess on
the basis of Article 236 of the Customs Code

1. Article 122(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992


establishing the Community Customs Code is to be interpreted as meaning that, at the
time of determining the amount of the customs debt resulting from the release for free
circulation of compensating products, unless the person concerned has expressly made a
request to that effect, the national customs authorities are not bound to apply the rules of
assessment relating to the procedure for processing under customs control where the
import goods could have been placed under that procedure.
2. Article 236 of Regulation No 2913/92 is to be interpreted as meaning that the national
customs authorities must allow a request for repayment of import duties where it
transpires that, following an error by the person concerned and not through the exercise
of a choice, the amount of the customs debt has been determined by applying Article 121
of that regulation and has already been the subject of a communication to the person
concerned, even if that request entails a recalculation by those authorities of the amount
of the debt by applying Article 122(c) of that regulation.
C-68/05 P – 26/10/06 – Koninklijke Coöperatie Cosun UA v Commission of the
European Communities

Appeal (T-240/02) – Agriculture – Common organisation of the markets – Sugar –


Article 26 of Regulation (EEC) No 1785/81 and Article 3 of Regulation (EEC) No
2670/81– Charge owing for C Sugar disposed of on the internal market – Application for
remission – Equity clause laid down in Article 13 of Regulation (EEC) No 1430/79 –
‘Import or export duties’ – Principles of equality and legal certainty – Equity

The appeal was dismissed.


_______________________________________________________________________
_______________________________________________________________________
T-55/05 – 25/1/07 – Rijn Schelde Mondia France SA v Commission of the European
Communities

Action for annulment - Common Customs Tariff - Application for remission of import
duties - Measure adversely affecting a person – Inadmissibility

The action was dismissed as inadmissible.


_______________________________________________________________________
C-15/05 – 27/4/06 – Kawasaki Motors Europe NV v Inspecteur van de
Belastingdienst/Douane district Rotterdam

Common Customs Tariff – Tariff headings – Classification of vehicles – Tractors – Cars


and vehicles principally designed for the transport of persons – Regulation (EC) No
2518/98 – Point 5 of the annexed table – Invalidity

1. By adopting a capacity different from that contained in the Harmonised System


Committee’s classification opinion of 1999 for vehicles described in subheading 8703 21
10 of the Combined Nomenclature, namely the capacity to tow loads three times their
own weight or more, and thereby extending the scope of the heading covering vehicles
principally designed for the transport of persons, point 5 of the table annexed to
Commission Regulation (EC) No 2518/98 of 23 November 1998 concerning the
classification of certain goods in the Combined Nomenclature is invalid.
2. New all terrain four-wheeled vehicles with one seat only, fitted with Ackerman steering
controlled by a handlebar, equipped with a towing hitch and the technical characteristics
of which enable them to push twice their own weight or more, must be classified in
subheading 8701 90 of that Nomenclature. It is for the Gerechtshof te Amsterdam to
classify such vehicles in the subheadings which correspond to their engine power.
C-14/05 – 13/7/06 – Anagram International Inc. v Inspecteur van de Belastingdienst
-Douanedistrict Rotterdam

Common Customs Tariff – Combined Nomenclature – Tariff classification – Gas-filled


balloons

1. Consideration of the second question has disclosed nothing capable of affecting the
validity of Commission Regulation (EC) No 442/2000 of 25 February 2000 concerning
the classification of certain goods in the Combined Nomenclature in so far as the
products referred to in point 3 of the table set out in the Annex thereto are classified
under subheading 9503 90 32 of the Combined Nomenclature of the Common Customs
Tariff, set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs Tariff, as amended by
Commission Regulation (EC) No 1832/2002 of 1 August 2002.
2. The classification decided upon by the Commission of the European Communities in
Regulation No 442/2000, as regards the product described in point 3 of the table set out
in the Annex thereto, is applicable by analogy to gas-filled balloons made of aluminised,
bonded plastic foil, the plastic foil forming the inside of the balloon. _______________
C-11/05 – 11/5/06 – Friesland Coberco Dairy Foods BV, trading as Friesland Supply
Point Ede v Inspecteur van de Belastingdienst/Douane Noord/kantoor Groningen

Community Customs Code – Arrangements for processing under customs control –


Refusal by the national customs authorities of an application for authorisation for
processing under customs control – Binding nature of the conclusions of the Customs
Code Committee – None – Jurisdiction of the Court to rule on the validity of those
conclusions in the context of Article 234 EC – None – Interpretation of Article 133(e) of
the Customs Code – Interpretation of Articles 502(3) and 504(4) of Regulation (EEC) No
2454/93 – Overall assessment of all the circumstances of the application for authorisation

1. In the assessment of an application for authorisation for processing under customs


control pursuant to Article 133(e) of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code, as amended by Regulation
(EC) No 2700/2000 of the European Parliament and of the Council of 16 November
2000, account must be taken not only of the market for the finished products but also of
the economic situation of the market for the raw materials used to produce those
products.
2. The criteria to be taken into consideration when assessing ‘processing activities to be
created or maintained’ within the meaning of Article 133(e) of Regulation No 2913/92, as
amended by Regulation No 2700/2000, and Article 502(3) of Commission Regulation
(EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of
Council Regulation (EEC) No 2913/92, as amended by Commission Regulation (EC) No
993/2001 of 4 May 2001, may include the criterion relating to the creation of a minimum
number of jobs on account of the processing activities envisaged, but is not limited to that
criterion. Those criteria depend on the nature of the processing activity concerned, and
the national customs authority responsible for examining the economic conditions under
those provisions must make an overall assessment of all the relevant factors, including
those concerning the number of jobs created, the value of the investment made and the
permanence of the activity envisaged.
3. The validity of conclusions of the Customs Code Committee issued in accordance with
Article 133(e) of Regulation No 2913/92, as amended by Regulation No 2700/2000,
cannot be examined within the framework of Article 234 EC.
4. The Customs Code Committee’s conclusion is not binding on national customs
authorities when they are determining an application for authorisation for processing
under customs control.
C-517/04 – 8/6/06 – Visserijbedrijf D.J. Koornstra & Zn. vof v Productschap Vis

Charge on the landing of shrimp with fishing vessels registered in a Member State
intended to finance shrimp sieving and peeling equipment in the same Member State –
Article 25 EC – Charges having an effect equivalent to customs duties – Article 90 EC –
Internal taxation

A charge levied by an association governed by public law of a Member State, on the


basis of identical criteria, on national products intended for the national market or for
export to other Member States constitutes a charge having an effect equivalent to an
export duty, prohibited by Articles 23 EC and 25 EC, if the revenue from that charge is
used to finance activities which benefit only the national products intended for the
national market and the advantages stemming from the use of the revenue from that
charge fully offset the burden borne by those products. On the other hand, if the
advantages accruing to the national products processed or marketed on the national
market from the use of the revenue generated by that charge offset only partially the
burden borne by those products, such a charge would constitute a breach of the
prohibition on discrimination laid down by Article 90 EC.
_______________________________________________________________________
C-514/04 – 13/7/06 – Uroplasty BV v Inspecteur van de Belastingdienst-Douanedistrict
Rotterdam

Tariff classification – Sterile flakes of polydimethilsiloxane – Silicone elastomer –


Meaning of ‘primary form’ – Medicament – Packaging – Meaning of ‘appliance
implanted in the body’

Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2388/2000 of 13 October 2000, is to be interpreted as meaning that
a product, such as the polydimethilsiloxane, made up of sterile flakes, specially
developed and intended only to be implanted in the body for the treatment of a condition
and which is packaged at the time of its presentation to customs in l kg bags, is to be
regarded as an appliance to be implanted in the body which must be classified under
heading 9021 of the Combined Nomenclature. Since the purpose of such a product is not
to replace an organ but to enable a defective muscle to create connective tissues, it must
be classified under subheading 9021 90 90 of the Combined Nomenclature.
_______________________________________________________________________
C-500/04 – 16/2/06 – Proxxon GmbH v Oberfinanzdirektion Köln

Tariff classification – Hand-operated spanners and wrenches and interchangeable spanner


sockets

1. Heading 8204 of the Combined Nomenclature in Annex I to Council Regulation (EEC)


No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 2388/2000 of
13 October 2000, is to be interpreted as not covering separately imported screwdriver
bits with square drive for slotted-head, cross-head, TX (internal Torx) and hexagon
socket head screws, as described in the order for reference.
2. Heading 8204 of the Combined Nomenclature is to be interpreted as covering
separately imported parts of the square system, as described in the order for reference,
which are not in direct contact with the fastener during use.
3. Heading 8204 of the Combined Nomenclature is to be interpreted as covering
separately imported square-system torque meter wrenches of the type described in the
order for reference. ______________________________________________________
T-496/04 – 16/9/08 – Nortrail Transport GmbH v Commission of the European
Communities

The applicant claimed that the Court should annul the decision of the Commission dated
1 October 2004 (REM 15/02) on the application by the company NORTRAIL Transport
GmbH for repayment of import duties pursuant to Article 239 of the Customs Code
-Regulation (EEC) No 2913/92.
The applicant argued that there were special circumstances within the meaning of Article
239 of Regulation (EEC) No 2913/1992, as a result of which it was entitled to repayment
and remission of import duties.
The action was dismissed.
_______________________________________________________________________
C-491/04 – 23/2/06 – Dollond & Aitchison Ltd v Commissioners of Customs & Excise

Community Customs Code – Customs value – Customs import duties – Delivery of


goods by a company established in Jersey and supplies of services effected in the United
Kingdom

1. Article 29 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing


the Community Customs Code must be interpreted as meaning that, in circumstances
such as those of the main proceedings, payment for the supply of specified services, such
as examination, consultation or aftercare required in connection with contact lenses, and
for specified goods, consisting of those lenses, the cleaning solutions and the soaking
cases, constitutes as a whole the ‘transaction value’ within the meaning of Article 29 of
the Customs Code and is, therefore, dutiable.
2. The principles laid down in the CCP judgment (Case C-349/96) of 25 February 1999
cannot be used directly to determine the elements of the transaction to be taken into
account for the purposes of applying Article 29 of the Customs Code. ______________
C-445/04 – 8/12/05 – Possehl Erzkontor GmbH v Hauptzollamt Duisburg

Common Customs Tariff – Tariff classification – Subheading 2519 90 10 – Fused


magnesia obtained by fusion in an electric arc furnace of magnesite that has previously
been caustic-burned – Fused magnesia

Fused magnesia such as that at issue in the main proceedings comes under subheading
2519 90 10 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulations (EC) Nos 3115/94 of 20
December 1994, 1359/95 of 13 June 1995, 2448/95 of 10 October 1995 and 3009/95 of
22 December 1995.
_______________________________________________________________________
C-419/04 – 22/6/06 – Conseil général de la Vienne v Directeur général des douanes et
droits indirects

Post-clearance recovery of import duties – Remission of import duties – Conditions –


Article 871 of the regulation implementing the Community Customs Code – Scope of the
obligation to submit the case to the Commission – Failure on the part of a person liable
for payment acting in good faith to declare additional royalties which should have been
incorporated in the customs value of imported goods

Article 871 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, as amended by Commission Regulation (EC) No 1677/98
of 29 July 1998, must be interpreted as meaning that, in the context of a recovery
procedure or a procedure for remission of uncollected customs duties, the national
customs authorities are not required to submit the case to the Commission for a decision
where the doubts which they had had as regards the precise scope of the criteria laid
down in Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code with regard to a particular case have
dissipated, even after those authorities have expressed their intention to refer the matter
to the Commission, or where the doubts relate to the subsequent entry in the accounts of
customs duties which were not collected due to an omission on the part of an importer
acting in good faith to declare royalties which should have been incorporated in the
customs value of the imported goods.
_______________________________________________________________________
C-393/04 and C-41/05 – 15/6/06 – Air Liquide Industries Belgium SA v Ville de
Seraing (C-393/04) and Province de Liège (C-41/05)

State aid – Definition – Exemption from municipal and provincial taxes – Effects of
Article 88(3) EC – Charges having equivalent effect – Internal taxation

A tax on motive force, levied in particular on motors used for transporting industrial gas
through very high pressure pipes, does not constitute a charge having equivalent effect
within the meaning of Article 25 EC.
_______________________________________________________________________
T-382/04 – 30/11/06 – Heuschen & Schrouff Oriëntal Foods Trading BV v Commission
of the European Communities

Customs union - Rice paper from Vietnam - Remission of import duties - Equitable relief
- Article 239 of Regulation (EEC) No 2913/92 - Error of the customs authority
-Definition of manifest negligence - Principle of equal treatment - Principle of sound
administration - Principle of proportionality

The action was dismissed.


_______________________________________________________________________
C-353/04 – 7/9/06 – Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas

Regulations (EEC) Nos 1538/91 and 3665/87 – Community Customs Code – Export
refunds – Conditions for granting – Sound and fair marketable quality – Customs
procedure – Export declaration – Physical check – Sample – Tolerated number of
defective units – Uniform quality – Rights and obligations of the exporter and of the
customs authority – Poultrymeat

In circumstances such as those of the main proceedings, Article 70 of Council Regulation


(EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as
amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of
19 December 1996, applies, subject to the proper conduct of the examination referred to
therein, where it is necessary to establish whether a product in respect of which an export
refund is sought is of ‘sound and fair marketable quality’.
The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of
Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of
the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91.
In circumstances such as those of the case in the main proceedings, it is for the national
administrative and judicial authorities to establish the facts by taking into account all of
the evidence. Such evidence may include available samples but also other information, in
particular the examination account produced in accordance with Community legislation
by the customs officer who carried out the physical checks. In the event that the facts
cannot be conclusively established for the purpose of entitlement to the refund, it is for
the national court to assess the exporter’s conduct and that of the customs authority by
establishing the extent to which each has, or has not, exercised its rights and fulfilled its
obligations and to draw the appropriate conclusions concerning entitlement to the export
refund.
_______________________________________________________________________
C-351/04 – 27/9/07 –

Ikea Wholesale Ltd v Commissioners of Customs & Excise

Dumping – Imports of cotton-type bed linen from Egypt, India and Pakistan – Regulation
(EC) No 2398/97 – Regulation (EC) No 1644/2001 – Regulation (EC) No 160/2002 –
Regulation (EC) No 696/2002 – Recommendations and decisions of the WTO Dispute
Settlement Body – Legal consequences – Regulation (EC) No 1515/2001 – Retroactivity
– Reimbursement of duties paid

1. Article 1 of Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a


definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt,
India and Pakistan is invalid in so far as the Council of the European Union applied, for
the purpose of determining the dumping margin for the product subject to the
investigation, the practice of ‘zeroing’ negative dumping margins for each of the product
types concerned.
2. An importer, such as that at issue in the main proceedings, which has brought an
action before a national court against the decisions by which the collection of anti-
dumping duties is claimed from it under Regulation No 2398/97, declared invalid by this
judgment, is, in principle, entitled to rely on that invalidity in the dispute in the main
proceedings in order to obtain repayment of those duties in accordance with Article
236(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code. ________________________________________________
T-313/04 – 3/10/06 –

Hewlett-Packard GmbH v Commission of the European Communities

Refusal of repayment of import duties - Action for annulment - Importation of printers


and printer cartridges from Singapore - Particular circumstances - Equity clause - Article
239 of Regulation No 2913/92

The action was dismissed.


_______________________________________________________________________
C-312/04 – 5/10/06 –

Commission of the European Communities v Kingdom of the Netherlands

Failure of a Member State to fulfil obligations – Communities’ own resources –


Undischarged TIR carnets – Procedures for collecting import duties – Non-compliance –
Failure to transfer the related own resources and to pay default interest

The action was dismissed.


_______________________________________________________________________
C-311/04 – 12/1/06 – Algemene Scheeps Agentuur Dordrecht BV v Inspecteur der
Belastingdienst – Douanedistrict Rotterdam

Common Customs Tariff – Tariff headings – Classification of consignments of rice –


Additional Note 1(f) to Chapter 10 of the Combined Nomenclature – Validity –
Post-clearance recovery of import duties – Article 220(2)(b) of the Community Customs
Code – Interpretation – Good faith of the person liable for payment

The Court declared the validity of Additional Note 1(f) to Chapter 10 of Annex I to
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2388/2000 of 13 October 2000.
_______________________________________________________________________
C-306/04 – 16/11/06 – Compaq Computer International Corporation v Inspecteur der
Belastingdienst – Douanedistrict Arnhem

Customs value – Laptop computers equipped with operating systems software

In order to determine the customs value of imports of computers equipped by the seller
with software for one or more operating systems made available by the buyer to the seller
free of charge, in accordance with Article 32(1)(b) or (c) of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community Customs Code, the value of
the software must be added to the transaction value of the computers if the value of the
software has not been included in the price actually paid or payable for those computers.
The same is true when the national authorities accept as the transaction value, in
accordance with Community law, the price of a sale other than that made by the
Community purchaser. In such cases, ‘buyer’ for the purposes of Article 32(1)(b) or (c)
of the Customs Code must be understood to mean the buyer who concluded that other
sale.
_______________________________________________________________________
C-304/04 and C-305/04 – 7/7/05 – Jacob Meijer BV (C-304/04) and Eagle International
Freight BV (C-305/04) v Inspecteur van de Belastingdienst - Douanedistrict Arnhem

Common Customs Tariff - Tariff classification of sound cards for computers - Validity of
Regulations (EC) Nos 2086/97 and 2261/98

By including, through Regulations Nos 2086/97 and 2261/98 amending Annex I to


Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff, sound cards for computers, which have no specific function within the
meaning of note 5(E) to chapter 84 of the Combined Nomenclature, under subheading
8543 89 79 of the Combined Nomenclature, the Commission did not respect the content
of heading 8543, which relates solely to electrical machines and apparatus having
individual functions. Consequently, those regulations are invalid in so far as they classify
sound cards for computers under heading 8543 89 79 of the Combined Nomenclature.
(see paras 23, 25-26, operative part)
_______________________________________________________________________
C-293/04 – 9/3/06 – Beemsterboer Coldstore Services BV v Inspecteur der
Belastingdienst – Douanedistrict Arnhem

Post-clearance recovery of import or export duties – Article 220(2)(b) of Regulation


(EEC) No 2913/92 – Application ratione temporis – System of administrative
cooperation involving the authorities of a non-member country – Meaning of ‘incorrect
certificate’ – Burden of proof

1. Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992


establishing the Community Customs Code, as amended by Regulation (EC) No
2700/2000 of the European Parliament and of the Council of 16 November 2000, applies
to a customs debt which was incurred and the post-clearance recovery of which was
commenced before that regulation entered into force.
2. Inasmuch as the origin of the goods referred to in a movement certificate EUR.1 can
no longer be confirmed following subsequent verification, that certificate must be
considered to be an ‘incorrect certificate’ within the meaning of Article 220(2)(b) of
Regulation No 2913/92, as amended by Regulation No 2700/2000.
3. The person who relies on the third subparagraph of Article 220(2)(b) of Regulation No
2913/92, as amended by Regulation No 2700/2000, must adduce the evidence necessary
for his claim to succeed. It is therefore in principle for the customs authorities which wish
to rely on the beginning of the third subparagraph of that Article 220(2)(b) in order to
carry out post-clearance recovery to adduce evidence that the incorrect certificates were
issued because of the inaccurate account of the facts provided by the exporter. Where,
however, as a result of negligence wholly attributable to the exporter, it is impossible for
the customs authorities to adduce the necessary evidence that the movement certificate
EUR.1 was based on the accurate or inaccurate account of the facts provided by the
exporter, the burden of proving that that certificate issued by the authorities of the
non-member country was based on an accurate account of the facts lies with the person
liable for the duty. _______________________________________________________
C-275/04 – 5/10/06 – Commission of the European Communities v Kingdom of
Belgium

Failure of a Member State to fulfil obligations – External Community transit –


Regulations (EEC) No 2913/92 and No 2454/93 – Communities’ own resources –
Making available – Time-limits – Default interest – Failure to keep and communicate
supporting documents relating to the establishment and making available of own
resources

The Court declared that:


by failing to enter in the accounts referred to in Article 6(3)(a) of Council Regulation
(EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC,
Euratom on the system of the Communities’ own resources the entitlements established
within the prescribed periods,
by failing to verify whether, since 1 January 1995, other delays in making own resources
available occurred following a late entry in the accounts referred to in Article 6(3)(a) of
Regulation No 1150/2000, by destroying the records covering that period and by failing
to inform the Commission of those delays in order to enable it to calculate the default
interest owing in terms of Article 11 of that regulation due to a delay in making own
resources available,
the Kingdom of Belgium has failed to fulfil its obligations under Articles 3, 6, 9, 10 and
11 of Regulation No 1150/2000 which, with effect from 31 May 2000, repealed and
replaced Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing
Decision 88/376/EEC, Euratom on the system of the Communities’ own resources, the
purpose of which is the same, and Article 10 EC.
_______________________________________________________________________
C-248/04 – 26/10/06 – Koninklijke Coöperatie Cosun UA v Minister van Landbouw,
Natuur en Voedselkwaliteit

Preliminary reference – Agriculture – Common organisation of the markets – Sugar –


Article 26 of Regulation (EEC) No 1785/81 and Article 3 of Regulation (EEC) No
2670/81– Charge due for C Sugar disposed of on the internal market – Inapplicability of
Article 13 of Regulation (EEC) No 1430/79 – No possibility of repayment or remission
on grounds of equity – Validity of Regulation (EEC) No 1785/81 and Regulation No
2670/81 – Principles of equality and legal certainty – Equity

All of the import duties laid down in Article 1(2)(a) of Regulation No 1430/79, namely,
customs duties on imports and charges having equivalent effect to such duties, as well as
agricultural levies and other import charges laid down within the framework of the
common agricultural policy or in that of specific arrangements applicable, pursuant to
Article 235 of the EC Treaty (now Article 308 EC), to certain goods resulting from the
processing of agricultural products, are levied by reason of the crossing of the external
frontiers of the Community.
A charge due under Article 3 of Regulation No 2670/81 is not levied by reason of the fact
that a quantity of C sugar has crossed the external frontiers of the Community but,
rather, because that quantity has not been exported outside the Community or because
the conditions and time-limits laid down by Regulation No 2670/81 were not complied
with when it was exported.
Therefore, such a charge does not correspond to any of the three categories listed in
Article 1(2)(a) of Regulation No 1430/79 and, consequently, does not come under import
duties within the meaning of Article 13 of the same regulation.
A charge due under Article 3 of Regulation No 2670/81 and the import duties referred to
in Article 1(2)(a) of Regulation No 1430/79 do not pursue the same objectives.
An amount due under Article 3 of Regulation No 2670/81 does not fall within the ambit of
Article 13 of Regulation No 1430/79.
Article 13 of Regulation No 1430/79 cannot serve as a basis for remission or repayment
of a charge due under Article 3 of Regulation No 2670/81.
_______________________________________________________________________
C-247/04 – 20/10/05 – Transport Maatschappij Traffic BV v Staatssecretaris van
Economische Zaken

Community Customs Code – Repayment or remission of import or export duties –


Meaning of ‘legally owed’

Article 236(1), first subparagraph, of Regulation No 2913/92 establishing the Community


Customs Code provides that import duties or export duties shall be repaid in particular
where it is established that ‘when they were paid the amount of such duties was not
legally owed’. For the purposes of that provision, import duties or export duties are
legally owed where a customs duty has been incurred within the conditions laid down by
Chapter 2 of Title VII of that Code and where the amount of those duties could be
determined by the application of the Common Customs Tariff in accordance with the
provisions of Title II of that Code.
The amount of the import duties or export duties remains legally owed within the
meaning of that article, even where that amount has not been communicated to the debtor
in accordance with Article 221(1) of the Code.
The incurring of a customs debt precedes the communication of its amount and is
therefore necessarily independent of that communication. That communication cannot
therefore have an influence on the existence of the customs debt.
(see paras 26, 29, operative part)
_______________________________________________________________________
C-201/04 – 23/2/06 – Belgische Staat v Molenbergnatie NV

Community Customs Code – Post-clearance recovery of import or export duties – Duty


to notify the debtor of the amount of duty owed as soon as it has been entered in the
accounts and before the expiry of a period of three years from the date when the debt was
incurred – Definition of ‘appropriate procedures’

1. Only the procedural rules set out in Articles 217 to 232 of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community Customs Code apply to the
recovery, commenced after 1 January 1994, of a customs debt incurred prior to that date.
2. Article 221(1) of Regulation No 2913/92 requires the amount of import or export duty
to be entered in the accounts before it is communicated to the debtor.
3. On expiry of the period prescribed by Article 221(3) of Regulation No 2913/92, an
action for recovery of a customs debt is time-barred subject to the exception laid down in
that article, which amounts to the debt itself being time-barred and, consequently,
extinguished. In the light of the rule thus established, Article 221(3) must be considered,
unlike Article 221(1) and (2), to be a substantive provision and cannot, therefore, be
applied to recovery of a customs debt incurred prior to 1 January 1994. Where the
customs debt was incurred prior to 1 January 1994, that debt can be governed only by
the rules on limitation in force at that date, even if the procedure for recovery of the debt
was commenced after 1 January 1994.
4. Member States are not required to adopt specific procedural rules on the manner in
which communication of the amount of import or export duties is to be made to the debtor
where national procedural rules of general application can be applied to that
communication, which ensure that the debtor receives adequate information and which
enable him, with full knowledge of the facts, to defend his rights. __________________
T-183/04 – 19/3/07 – Tokai Europe GmbH v Commission of the European Communities

Action for annulment - Common Customs Tariff - Classification in the Combined


Nomenclature - Person not individually concerned – Inadmissibility

The action was dismissed as inadmissible.


_______________________________________________________________________
C-140/04 – 15/9/05 – United Antwerp Maritime Agencies NV v Belgische Staat and
Seaport Terminals NV v Belgische Staat and United Antwerp Maritime Agencies NV

Customs union - Creation of a customs debt on importation - Goods in temporary storage


- Unlawful removal of the goods from customs supervision - Person liable for the debt

The fourth indent of Article 203(3) of Regulation No 2913/92 establishing the Community
Customs Code which refers, among the categories of persons responsible for the customs
debt incurred through unlawful removal from customs supervision of goods liable to
import duties, to ‘the person required to fulfil the obligations arising from temporary
storage of the goods’ must be interpreted as meaning that those words designate the
person who holds the goods after they have been unloaded in order to move or store
them.
(see para. 41, operative part)
_______________________________________________________________________
C-136/04 – 24/11/05 – Deutsches Milch-Kontor GmbH v Hauptzollamt Hamburg-Jonas

Export refunds – Regulations (EEC) Nos 804/68, 1706/89 and 3445/89 – Cheeses
intended for processing in a third country

Cheese exported in 1990 which, by its nature, is intended for processing in a third
country may be covered by an export refund under Article 17(1) of Regulation No 804/68
on the common organisation of the market in milk and milk products, as amended by
Regulation No 3904/87, provided that it is classified, taking account of its type and
composition, under one of the product codes in the annex to Regulation No 1706/89
fixing the export refunds on milk and milk products, as defined by the agricultural
product nomenclature for export refunds annexed to Regulation No 3445/89 establishing
the full version, applicable from 1 January 1990, of the agricultural product
nomenclature for export refunds.
(see para. 33, operative part)
_______________________________________________________________________
C-23/04 to C-25/04 – 9/2/06 – Sfakianakis AEVE v Elliniko Dimosio

Association Agreement EEC-Hungary – Obligation of mutual assistance between


customs authorities – Post-clearance recovery of import duties following revocation in
the State of export of the movement certificates for the imported products

1. Articles 31(2) and 32 of Protocol 4 to the Europe Agreement establishing an


association between the European Communities and their Member States, of the one part,
and the Republic of Hungary, of the other part, as amended by Decision No 3/96 of the
Association Council between the European Communities and their Member States, of the
one part, and the Republic of Hungary, of the other part, of 28 December 1996, are to be
interpreted as meaning that the customs authorities of the State of import are bound to
take account of judicial decisions delivered in the State of export on actions brought
against the results of verification of the validity of goods movement certificates conducted
by the customs authorities of the State of export, once they have been informed of the
existence of those actions and the content of those decisions, regardless of whether the
verification of the validity of the movement certificates was carried out at the request of
the customs authorities of the State of import.
2. The effectiveness of the abolition of the imposition of customs duties under the Europe
Agreement establishing an association between the European Communities and their
Member States, of the one part, and the Republic of Hungary, of the other part,
concluded and approved by the decision of the Council and the Commission of 13
December 1993, precludes administrative decisions imposing the payment of customs
duties, taxes and penalties taken by the customs authorities of the State of import before
the definitive result of actions brought against the findings of the subsequent verification
have been communicated to them, when the decisions of the authorities of the State of
export which initially issued the EUR.1 certificates have not been revoked or annulled.
3. The answer to the first three questions is not affected by the fact that neither the Greek
customs authorities nor the Hungarian customs authorities sought convocation of the
Association Committee pursuant to Article 33 of Protocol No 4, as amended by Decision
3/96. __________________________________________________________________
C-546/03– 23/2/06 – Commission of the European Communities v Kingdom of Spain

Failure of a Member State to fulfil its obligations -Community' own resources


-Community Customs Code - Procedures for collecting import or export duties - Late
payment of own resources relating to those duties and failure to pay default interest

The Court declared that:


(a) by failing to comply with the time-limits for late entry in the accounts of duties arising
from a customs debt laid down in Article 5 of Council Regulation (EEC) No 1854/89 of
14 June 1989 on the entry in the accounts and terms of payment of the amounts of the
import duties or export duties resulting from a customs debt, and, from 1 January 1994,
with Article 220(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, leading to a delay in making available of
own resources, and
(b) by failing to pay to the Commission of the European Communities the interest under
Article 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989
implementing Decision 88/376/EEC, Euratom on the system of the Communities' own
resources, and, from 31 May 2000 of Article 11 of Council Regulation (EC, Euratom) No
1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of
the Communities' own resources,
the Kingdom of Spain has failed to fulfil its obligations under all of those provisions.
_______________________________________________________________________
C-515/03 – 21/7/05 – Eichsfelder Schlachtbetrieb GmbH v Hauptzollamt HamburgJonas

Agriculture - Common organisation of the markets - Export refunds - Conditions for


granting them - Import of the product into the non-member country of destination
-Meaning - Customs formalities for release for consumption in the non-member country
-Substantial processing or working - Reimportation into the Community - Abuse of law

The condition for obtaining a differentiated export refund laid down in Article 17(3) of
Regulation No 3665/87 laying down common detailed rules for the application of the
system of export refunds on agricultural products, as amended by Regulation No
1384/95, as regards in particular the adjustments necessary for the implementation of the
Uruguay Round Agreement on Agriculture, namely clearance through customs for
release of the product concerned for consumption in the non-member country of
destination, is fulfilled where that product, on which import duties were paid in that
country, undergoes substantial processing or working there within the meaning of Article
24 of Regulation No 2913/92 establishing the Community Customs Code, even if the
product deriving from such processing or working is then re-exported to the Community,
with reimbursement of the duties levied in that country and payment of customs import
duties in the Community.
If the subsequent reimbursement of duties levied on an economic operator other than the
exporter retroactively removed the legal basis of the export refund, the exporter would be
placed in a position of uncertainty, arguably in breach of the principle of legal certainty,
and his right to a refund would depend on events or commercial conduct outside his
control.
That situation must, however, be distinguished from cases in which the exporter himself
has participated in an abusive practice, in which case reimbursement of the export refund
may nevertheless be required if the national court considers that evidence of an abusive
practice has been produced, in accordance with the rules of national law.
(see paras 36, 41, operative part)
_______________________________________________________________________
C-499/03 P – 3/3/05 – Peter Biegi Nahrungsmittel GmbH and Commonfood
Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European
Communities

Appeal (T-309/01 and T-239/02) – Common Customs Tariff – Subsequent recovery of


import duties – Waiver of duties to be recovered – Conditions – Article 220(2)(b) of
Regulation (EEC) No 2913/92 – Error of the customs authorities – Detectable error –
Combined nomenclature – Remarks – Scope

1. It follows from Article 225 EC and Article 58 of the Statute of the Court of Justice that
an appeal is limited to points of law. The Court of First Instance therefore has exclusive
jurisdiction to find the facts, save where a substantive inaccuracy in its findings is
attributable to the documents submitted to it, and to appraise those facts. That appraisal
thus does not, save where the clear sense of the evidence has been distorted, constitute a
point of law which is subject, as such, to review by the Court of Justice in an appeal.
However, where the Court of First Instance has found or appraised the facts, the Court of
Justice has jurisdiction, pursuant to Article 225 EC, to carry out a review of the legal
classification of those facts and the legal inferences drawn from them by the Court of
First Instance. Such a classification is a question of law which, as such, may be subject to
review by the Court of Justice in an appeal.
(see paras 40-41)
2. Under Article 220(2)(b) of Regulation No 2913/92 establishing the Community
Customs Code, for the competent authorities to be able not to make subsequent entry in
the accounts of import duties, three cumulative conditions must be satisfied: the failure to
collect the duties must have been due to an error by the competent authorities
themselves; their error must be of such a kind that it could not reasonably have been
detected by a person liable for payment acting in good faith; and that person must have
complied with all the provisions laid down by the legislation in force as regards his
customs declaration.
Whether an error of the competent customs authorities was detectable must be assessed
having regard to the nature of the error, the professional experience of the operators
concerned and the care which they exercised. The nature of the error must be assessed in
the light of the complexity or sufficient simplicity of the rules concerned and the period of
time during which the authorities persisted in their error.
In this respect, certain provisions of Regulation No 1359/95 amending Annexes I and II
to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff and repealing Regulation No 802/80 create a situation which is not
sufficiently simple for it to be easily detectable from an examination of them that, from 1
July 1995, use of the tariff quotas relating to certain goods remains subject to the
condition, laid down by Regulation No 1431/94 laying down detailed rules for the
application in the poultrymeat sector of the import arrangements provided for in
Regulation No 774/94, of producing an import licence. In those circumstances, those
rules may objectively be described as complex and the errors committed by the customs
authorities, in amending their working tariff while omitting to state that the importation
of those goods was subject to production of such a licence, are of such a kind that they
could not reasonably be detected by the economic operators.
(see paras 46-48, 54-56)
_______________________________________________________________________
C-495/03 – 15/9/05 – Intermodal Transports BV v Staatssecretaris van Financiën

Common Customs Tariff - Tariff headings - Classification in the combined nomenclature


- Heading 8709 - "Magnum ET120 Terminal Tractor" - Article 234 EC - Obligation of a
national court to refer a question for a preliminary ruling - Conditions - Binding tariff
information issued for a third party by the customs authorities of another Member State
concerning a similar vehicle

1. It follows from Article 12 of Regulation No 2913/92 establishing the Community


Customs Code that a binding tariff information creates rights only for the holder and in
respect only of the goods described therein. In a dispute pending before a court of a
Member State, the parties do not therefore have any personal right to rely on a binding
tariff information relating to similar goods issued to a third party by the authorities of
another Member State. (see para. 27)
2. Article 234 EC must be interpreted as meaning that when, in proceedings relating to
the tariff classification of specific goods before a national court or tribunal, a binding
tariff information relating to similar goods issued to a person not party to the dispute by
the customs authorities of another Member State is submitted, and that court or tribunal
takes the view that the tariff classification made in that information is wrong, those two
circumstances cannot result, in respect of a court or tribunal against whose decisions
there is a judicial remedy under national law, in the court or tribunal being under an
obligation to refer to the Court questions on interpretation.
In respect of a court or tribunal against whose decisions there is no judicial remedy
under national law, those circumstances cannot, in themselves, automatically result in
the court or tribunal being under an obligation to refer to the Court questions on
interpretation. Such a court or tribunal is, however, required, where a question of
Community law is raised before it, to comply with its obligation to make a reference,
unless it has established that the question raised is irrelevant or that the Community
provision in question has already been interpreted by the Court or that the correct
application of Community law is so obvious as to leave no scope for any reasonable
doubt. The existence of such a possibility must be assessed in the light of the specific
characteristics of Community law, the particular difficulties to which its interpretation
gives rise and the risk of divergences in judicial decisions within the Community. The
existence of a binding tariff information issued by the authorities of another Member
State must cause that court or tribunal to take particular care in its assessment of
whether there is no reasonable doubt as to the correct application of the combined
nomenclature, taking account, in particular, of the three criteria mentioned above. (see
para. 45, operative part 1)
3. Heading 8709 of the combined nomenclature in Annex I to Regulation No 2658/87 on
the tariff and statistical nomenclature and on the Common Customs Tariff, as amended
by Regulation No 2261/98, must be interpreted as not covering a vehicle equipped with a
diesel engine having an output of 132 kilowatts at 2 500 revolutions per minute and
automatic transmission with four forward gears and one reverse gear, fitted with a closed
cab and a fifth wheel allowing a lift height of 60 centimetres, which has a maximum
carrying capacity of 32 000 kilograms, a very small turning circle and is designed for
moving semi-trailers on industrial premises and in industrial buildings. Such a vehicle is
neither a works truck used for the transport of goods nor a tractor of the type used in
railway stations, within the meaning of that heading.
(see para. 64, operative part 2)
_______________________________________________________________________
C-468/03 – 20/10/05 – Overland Footwear (II) Ltd v Commissioners of Customs &
Excise

Common customs tariff – Import customs duties – Declared customs value including a
buying commission – Payment of customs duty on full amount declared – Revision of the
customs declaration – Conditions – Refund of customs duties paid on the buying
commission

1. Articles 29, 32 and 33 of Regulation No 2913/92 establishing the Community Customs


Code must be interpreted as meaning that a buying commission included in the declared
customs value and not distinguished from the sale price of the goods in the customs
declaration is to be regarded as forming part of the transaction value within the meaning
of Article 29 of the Code and therefore dutiable. (see para. 38, operative part 1)
2.On a proper interpretation of Articles 78 and 236 of Regulation No 2913/92
establishing the Community Customs Code, after the release of the imported goods, the
customs authorities, presented with an application from the declarant seeking revision of
his customs declaration in relation to those goods, are required, subject to the possibility
of a subsequent court action, either to reject the application by a reasoned decision, as
for example where the facts to be verified require physical verification and, following the
release of the goods, the latter can no longer be presented to them, or to carry out the
revision applied for where, conversely, the verifications to be carried out do not require
presentation of the goods, for example where the application for revision envisages only
the examination of accounting or contractual documents.
In accordance with Article 78(3) of the Customs Code, if the revision indicates that the
provisions governing the customs procedure in question were applied on the basis of
‘incorrect or incomplete information’, which terms cover both technical errors and
errors of interpretation of the applicable law such as the erroneous inclusion of a buying
commission in the declared customs value, the customs authorities must take the
measures necessary to regularise the situation, taking account of the new information
available to them. Where it finally becomes apparent that the import duties paid by the
declarant exceed those that were legally owed at the time of their payment, the measure
necessary to regularise the situation can consist only in repayment of the import duties
applied to that commission. That reimbursement is to be made in accordance with Article
236 of the Customs Code if the conditions laid down by that provision are fulfilled, in
particular that there has been no manipulation by the declarant and that the application
for reimbursement has been submitted within the time-limit, which is in principle three
years.
(see paras 48-49, 51-54, 63, 70-71, operative part 2)
_______________________________________________________________________
C-467/03 – 17/3/05 – Ikegami Electronics (Europe) GmbH v Oberfinanzdirektion
Nürnberg

Common Customs Tariff - Tariff headings - Tariff classification of a digital recording


machine - Classification under the Combined Nomenclature

A machine which, for video surveillance purposes, records signals from cameras and,
after compressing them, reproduces them on screen, performs a specific function other
than data processing within the meaning of Note 5(E) to Chapter 84 of the Combined
Nomenclature of the Common Customs Tariff in Annex I to Regulation No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs Tariff, as amended by
Regulation No 2031/2001.
(see para. 31, operative part)
_______________________________________________________________________
C-405/03 – 18/10/05 – Class International BV v Colgate-Palmolive Company, Unilever
NV, SmithKline Beecham plc, Beecham Group plc

Trade marks – Directive 89/104/EEC – Regulation (EC) No 40/94 – Rights conferred by


the trade mark – Use of the mark in the course of trade – Importation of original goods
into the Community – Goods placed under the external transit procedure or the customs
warehousing procedure – Opposition of the trade mark proprietor – Offering for sale or
selling goods placed under the external transit procedure or the customs warehousing
procedure – Opposition of the trade mark proprietor – Onus of proof

1. Article 5(1) and (3)(c) of First Directive 89/104 on trade marks and Article 9(1) and
(2)(c) of Regulation No 40/94 on the Community trade mark must be interpreted as
meaning that a trade mark proprietor cannot oppose the mere entry into the Community,
under the external transit procedure or the customs warehousing procedure, of original
goods bearing that mark which had not already been put on the market in the Community
previously by that proprietor or with his consent. The trade mark proprietor cannot make
the placing of the goods at issue under the external transit procedure or the customs
warehousing procedure conditional on the existence, at the time of the introduction of
those goods into the Community, of a final destination already specified in a third
country, possibly pursuant to a sale agreement.
‘Importing’ within the meaning of those provisions, which the trade mark proprietor may
oppose in so far as it entails ‘using [the mark] in the course of trade’ within the meaning
of Article 5(1) of the Directive and Article 9(1) of the Regulation, requires introduction of
those goods into the Community for the purposes of putting them on the market therein.
The putting on the market of goods coming from a third country is subject to their release
for free circulation, which is only one of the options open to the trader who brings goods
into the Community customs territory. As long as that option is not chosen and the
requirements of the customs-approved treatment or use, other than release for free
circulation, under which the goods have been placed are satisfied, the mere physical
introduction of those goods into the territory of the Community is not ‘importing’ within
the meaning of the provisions cited above. (see paras 34-35, 43-44, 50, operative part 1)
2. ‘Offering’ and ‘putting on the market’ the goods, within the meaning of Article 5(3)(b)
of First Directive 89/104 on trade marks and Article 9(2)(b) of Regulation No 40/94 on
the Community trade mark, may include, respectively, the offering and sale of original
goods bearing a trade mark and having the customs status of non-Community goods,
when the offering is done and/or the sale is effected while the goods are placed under the
external transit procedure or the customs warehousing procedure. The trade mark
proprietor may oppose the offering or the sale of such goods when it necessarily entails
the putting of those goods on the market in the Community. (see para. 61, operative part
2)
3. When a trade mark proprietor pleads interference with the exclusive rights conferred
on it by Article 5(1) of First Directive 89/104 on trade marks and Article 9(1) of
Regulation 40/94 on the Community trade mark, that interference involving either the
release for free circulation or the offering or sale of the goods which necessarily entails
putting on the market in the Community goods bearing the trade mark and having the
customs status of non-Community goods, it is for that proprietor to prove those facts
which give grounds for exercising the right of prohibition provided for in Article 5(3)(b)
and (c) of the directive and Article 9(2)(b) and (c) of the regulation.
(see paras 70, 75, operative part 3)
_______________________________________________________________________
C-400/03 – 8/7/04 – Waterman SAS, formerly Waterman SA v Directeur général des
douanes et droits indirects

Common Customs Tariff - Combined Nomenclature - Tariff heading - Pen cases

The Explanatory Notes to the Combined Nomenclature are a valid aid to the
interpretation of the tariff provided that their content is in accordance with the actual
provisions of the common customs tariff and do not alter the meaning of its provisions.
Such is the case with the Explanatory Notes to subheadings 4202 12 11 and 4202 12 19.
They are contrary neither to the terms of the headings and subheadings at issue nor to
the applicable notes nor to the rule mentioned in paragraph 6 of the general rules for the
interpretation of the Combined Nomenclature, according to which the classification of
goods is to be determined according to the terms of subheadings. In particular, those
Explanatory Notes are an extension of Additional Note 1 to Chapter 42 of the Combined
Nomenclature, in that they specify that where the outer layer visible to the naked eye is
sheeting of plastic, the process by which that sheeting was obtained is irrelevant for the
purposes of tariff classification. In addition, in considering equivalent two technical
processes which result in an identical product, namely an outer surface of plastic, they
comply with the decisive criterion for the tariff classification of goods which lies in their
objective characteristics and qualities, as defined in the relevant heading of the Common
Customs Tariff and in the notes to the relevant sections or chapters. It follows that there
is no information such as to affect the validity of the Explanatory Notes in question.
(see paras 16, 19, 21, 27, 29, 32, operative part)
_______________________________________________________________________
C-378/03 – 5/10/06 – Commission of the European Communities v Kingdom of
Belgium

Failure of a Member State to fulfil obligations – Communities’ own resources – Payment


in instalments by the debtor – Recovery

The Court declared that, because of the late payment of own resources in the case of
receipt of payments in instalments from a debtor, the Kingdom of Belgium has failed to
fulfil its obligations under Articles 10 and 11 of Council Regulation (EC, Euratom) No
1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of
the Communities' own resources, which, with effect from 31 May 2000, repealed and
replaced Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing
Decision 88/376/EEC, Euratom on the system of the Communities' own resources, which
was identical in subject-matter.
_______________________________________________________________________
C-377/03 – 5/10/06 – Commission of the European Communities v Kingdom of
Belgium

Failure of a Member State to fulfil obligations – Communities’ own resources –


Undischarged TIR carnets – Failure or delay in paying the corresponding own resources

The Court declared that


– by failing to enter in the accounts, or by making a late entry in the accounts of, the own
resources arising from the TIR carnets which had not been discharged properly, by
placing them in the B accounts instead of entering them in the A accounts, with the result
that the relevant own resources were not made available to the Commission of the
European Communities within the time-limits,
– by refusing to pay default interest on the amounts owing to the Commission of the
European Communities,
the Kingdom of Belgium has failed to fulfil its obligations under Articles 6, 9, 10 and 11
of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing
Decision 94/728/EC, Euratom on the system of the Communities’ own resources, which,
with effect from 31 May 2000, repealed and replaced Council Regulation (EEC,
Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on
the system of the Communities’ own resources, which had identical subject-matter.
_______________________________________________________________________
T-367/03 – 30/3/06 - Yedaº Tarim ve Otomotiv Sanayi ve Ticaret Aª v Council of the
European Union and Commission of the European Communities

Action for damages - International agreements - EEC-Turkey Association Agreement


-Customs Union between the European Community and Turkey - Compensatory financial
aid

Action for compensation for damage allegedly caused by the implementation of the
procedures of the Customs Union instituted by the Agreement establishing an Association
between the European Economic Community and Turkey and its Additional Protocols
and Decision 1/95 of the EC-Turkey Association Council of 22 December 1995 on
implementing the final phase of the Customs Union.
The action was dismissed.
_______________________________________________________________________
C-342/03 – 10/3/05 – Kingdom of Spain v Council of the European Union

Common commercial policy - Canned tuna originating in Thailand and the Philippines
-Mediation within the WTO - Regulation (EC) No 975/2003 - Tariff quota

1. Whilst ‘Community preference’ is one of the political considerations on which the


Community institutions have based themselves in adopting trading arrangements with
non-member countries, that preference is, however, by no means a legal requirement
infringement of which could result in the invalidity of the measure concerned. (see paras
18-19)
2. Community law does not prohibit the adoption of tariff measures, the possible effects
of which on competition are confined to a decrease in the orders of the producers
concerned and inequality in the conditions of competition created by differences in social
costs, environmental protection and control of products’ quality, between the
non-member countries concerned, on the one hand, and the Community, on the other.
Such a prohibition would prevent the Community contributing to the progressive removal
of restrictions on international trade. In fact, any reduction in customs duties is liable to
have some effect on competition between goods imported from non-member countries
and the equivalent Community products, to the disadvantage of the Community
producers. A contrary interpretation would mean that the Community could never reduce
duties on imported goods. (see paras 24-25)
3. Whilst any trader on the part of whom an institution has inspired reasonable
expectations may rely on the principle of the protection of legitimate expectations, there
is nothing to prevent a Member State itself from claiming in an action for annulment that
an act of the institutions frustrates the legitimate expectations of particular traders. (see
para. 47)
4. If those traders can foresee the adoption of the Community measure which affects their
interests, the benefit of the principle of the protection of legitimate expectations cannot be
invoked.
As regards the common commercial policy, since the Community institutions enjoy a
margin of discretion in the choice of the means needed to achieve it, traders cannot claim
to have a legitimate expectation that an existing situation will be maintained. (see paras
48-49)
5. The statement of reasons required by Article 253 EC must show clearly and
unequivocally the reasoning of the institution which enacted the measure, so as to inform
the persons concerned of the justification for the measure adopted and to enable the
Court to exercise its powers of review.
In the case of a measure intended to have general application, the preamble may be
limited to indicating the general situation which led to its adoption, on the one hand, and
the general objectives which it is intended to achieve, on the other. (see paras 54-55)
6. A measure is only vitiated by misuse of powers if it appears, on the basis of objective,
relevant and consistent evidence to have been taken with the exclusive or main purpose of
achieving an end other than that stated or evading a procedure specifically prescribed by
the Treaty for dealing with the circumstances of the case. (see para. 64)
C-300/03 – 20/1/05 – Honeywell Aerospace GmbH v Hauptzollamt Gießen

Community transit – Incurrence of a customs debt in the event of offences or


irregularities – Consequence of the lack of indication to the principal of the time-limit for
furnishing proof of the place where the offence or irregularity occurred

Article 203(1) of Regulation No 2913/92 establishing the Community Customs Code, in


conjunction with Article 379 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92, must be interpreted as meaning that a customs
debt has been incurred where a consignment placed under the external Community
transit procedure has not been presented at the customs office of destination and the
failure to notify to the principal the period in which the proof of the regularity of the
transit operation or of the place where the offence was actually committed may be
furnished to the office of departure does not prevent the customs debt being incurred.
That notification nevertheless constitutes a prerequisite for the recovery of the customs
debt by the customs authorities, so that the Member State to which the office of departure
belongs may take steps to recover the debt only if it has indicated to the principal that he
has three months in which to furnish the proof requested and such proof has not been
provided within that period.
(see paras 23, 26, operative part)
_______________________________________________________________________
C-272/03 – 15/12/04 – Hauptzollamt Neubrandenburg v Jens Christian Siig

Community Customs Code – Incurral of a customs debt – Temporary importation


procedure – Change of the tractor of a semi-trailer

Articles 718(3)(d) and 670(p) of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code,
the latter of which defines the concept of ‘internal traffic’ for the purposes of temporary
importation with relief from import duties and the former of which lays down a condition
to which admission under the temporary importation procedure for road vehicles for
commercial use is subject, are to be interpreted as meaning that they prohibit the use of a
road tractor registered outside the customs territory of the Community to transport a
semi-trailer from a place within the customs territory of the Community, where the semi-
trailer is loaded with goods, to another place within the customs territory of the
Community where the semi-trailer is merely parked with a view to being transported
subsequently by another road tractor to the consignee of the goods, who is established
outside the customs territory of the Community.
The application of the temporary importation procedure directly depends on the carrying
out by the vehicle concerned of a clearly defined transport operation, namely carriage
which includes a crossing of the external border of the customs territory of the
Community by that vehicle and the goods or persons transported, and accordingly it is
the transport operation itself, carried out by the means of transport concerned, which is
decisive and not the final destination of the goods or persons transported.
(see paras 18, 20, 26, operative part)
_______________________________________________________________________
C-206/03 – 19/1/05 – Commissioners of Customs & Excise v SmithKline Beecham

Article 104(3) of the Rules of Procedure – Common customs tariff – Tariff headings –
Nicotine patches – Force in law of a classification opinion of the World Customs
Organisation

1. Having regard to the classification of a given product in the Combined Nomenclature


drawn up by the Community legislature, a classification opinion issued by the World
Customs Organisation on the classification of that product in its harmonised system for
the description and coding of commodities has no legally binding force and is no more
than an indication assisting in the interpretation of the scope of the various tariff
headings of the Combined Nomenclature. If such a classification opinion is contrary to
the wording of the heading in the Combined Nomenclature, it must therefore be
disregarded. (see para. 28)
2. The Combined Nomenclature must be interpreted as meaning that nicotine patches
which present clearly defined therapeutic or prophylactic characteristics with an effect
concentrated on precise functions of the human body and which are individually
packaged in aluminium pouches and packed for sale in weekly packs together with
instructions are to be classified as ‘medicaments’ under heading 3004. (see paras 36, 39,
48, operative part 1)
3. If a competent authority has issued incorrect binding tariff information, a national
court is required under Article 10 EC to take, within the sphere of its competence, all the
measures necessary to ensure that that information is annulled and that new binding
tariff information, consistent with Community law, is issued.
In that context, the procedure for and the effects of the decisions adopted by the national
court hearing the action fall, within the bounds set by the principles of equivalence and
effectiveness, within the ambit of domestic law.
In that regard, it is not contrary to Article 12(5) of Regulation No 2913/92 establishing
the Community Customs Code for a national court to annul a decision of a customs
authority which, while it is consistent with a classification opinion of the World Customs
Organisation, fails to take account of the Combined Nomenclature drawn up by the
Community legislature and to declare that goods must be classified otherwise than in
accordance with that classification opinion.
(see para. 57, operative part 2)
_______________________________________________________________________
C-195/03 – 3/3/05 – Ministerie van Financiën v Merabi Papismedov and Others

Community Customs Code – Presentation of goods to customs – Meaning – Cigarettes


declared under the description ‘cookware’ – Incurrence of the customs debt on
importation – Debtor of the customs debt

1. It is clear from the combined effect of Articles 4(13) and 37 of Regulation No 2913/92
establishing the Community Customs Code that goods arriving in the Community are
subject to customs supervision from the time of their introduction therein, whether it is
lawful or in breach of Articles 38 to 41 or the second indent of the first paragraph of
Article 177 of the Customs Code, which is what the supervising authorities must, by their
controls, establish. It follows that the submission of goods to such supervision is not
connected to the lawfulness of their introduction into that territory. (see para. 22)
2. Goods presented to customs, for which a summary declaration was lodged and an
external Community transit document validated, were not lawfully introduced into the
customs territory of the Community if, in the documents lodged with the customs
authorities, the goods were wrongly designated. In such cases, the customs debt is based
on Article 202 of Regulation No 2913/92 establishing the Community Customs Code,
which lays down the detailed rules on incurrence of the customs debt on the unlawful
introduction of goods. (see paras 32, 36, operative part 1, 2)
3. In order to determine who is the debtor of the customs debt in cases of lodging of a
summary declaration or customs declaration under an incorrect designation, the national
court must establish whether the person who lodged the summary declaration or the
customs declaration was, because he stated an incorrect designation, responsible for the
unlawful introduction of the goods. If such is not the case, it is for that court to consider
whether, by that action, the person participated in the introduction of the goods whilst he
was or should reasonably have been aware that it was unlawful. (see para. 41, operative
part 3) ________________________________________________________________
C-170/03 – 17/3/05 – Staatssecretaris van Financiën v Feron

Regulation (EEC) No 918/83 – Relief from customs duties – Meaning of ‘personal


property’ and ‘possession’ – Motor vehicle made available to a person by his employer

Articles 1(2)(c), 2 and 3 of Regulation No 918/83 setting up a Community system of


reliefs from customs duty must be interpreted as meaning that a passenger vehicle which
is made available to a natural person by his employer and is used by that person for both
business and private purposes may be regarded as an item of personal property capable
of benefiting from a relief from customs duty under Articles 2 and 3 of that regulation. A
combined reading of those provisions shows that, in order to qualify for relief from
customs duty, the item of personal property must in particular have been in the
possession of, and used by, the person concerned, as personal property, for at least six
months before the date on which he ceased to have his normal place of residence in the
country of origin.
First, in the absence of an express provision to that effect, exclusive personal use cannot
be considered necessary in all circumstances for an item of property to be regarded as
personal property, so that a passenger vehicle used both for private and business
purposes must be capable of being regarded as such an item of personal property.
Secondly, the term ‘possession’ in Article 3 of the regulation implies that the relief need
not be limited to property forming part of the assets of the person concerned for at least
six months before his transfer of residence but also concerns other assets over which the
person concerned exercises, effective and genuine control throughout the same period.
(see paras 14, 21-22, 27, 29, 32, operative part)
_______________________________________________________________________
T-134/03 and T-135/03 – 27/9/05 – Common Market Fertilizers v Commission of the
European Communities (see Judgment in Appeal C-443/05 P)

Remission of import duties - Article 1(3) of Regulation (EC) No 3319/94 - Invoicing


direct to importer - 'Group of experts' within the meaning of Article 907 of Regulation
(EEC) No 2454/93 - Rights of the defence - 'Obvious negligence' within the meaning of
Article 239 of Regulation (EEC) No 2913/92 - Obligation to state reasons

1. Unless a plea of illegality is based on a matter of law or of fact which came to light in
the course of the procedure within the meaning of Article 48(2) of the Rules of Procedure
of the Court of First Instance, it is inadmissible at the stage of the reply, since an action
is defined by the application initiating proceedings. (see para. 51)
2. Although the Court must establish of its own motion any lack of competence by the
party adopting the contested measure, it is not required to consider of its own motion
whether the institution which adopted the provision constituting the legal basis for the
contested decision exceeded its authority. (see para. 52)
3. The group of experts which, pursuant to the first paragraph of Article 907 of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92 establishing the Community Customs Code, meets ‘within the framework of the
[Customs Code] Committee’, does not constitute a regulatory committee within the
meaning of Article 5 of Decision 1999/468 laying down the procedures for the exercise of
implementing powers conferred on the Commission.
It follows from the seventh recital in the preamble to and Article 5 of Decision 1999/468
that the regulatory procedure is to be used for ‘measures of general scope designed to
apply essential provisions of basic instruments’.
To consider that the regulatory committee – within the meaning of Article 5 of Decision
1999/468 – is empowered to give an opinion on a proposal for an individual decision as
to repayment or remission of customs duties would amount purely and simply to
conflating the notions of decision and measure of general scope, which are, however,
fundamentally distinct according to Article 249 EC and would, therefore, be in breach of
Article 249 EC and also of Article 7 EC and Decision 1999/468.
That conclusion is supported by the wording of the first paragraph of Article 907 of
Regulation No 2454/93. The phrase ‘within the framework of the Committee’ reflects the
fact that the group of experts referred to in Article 907 is clearly a distinct entity in
functional terms from the Customs Code Committee. If the legislature had intended the
Customs Code Committee to be consulted in the context of individual remission or
repayment procedures, it would have used the phrase ‘after consulting the committee’.
(see paras 55, 57-59)
4. The purpose of the Customs Code Committee’s rules of procedure is to ensure the
internal working of that committee while fully respecting the prerogatives of its members.
It follows that natural or legal persons may not rely on an alleged breach of those rules,
since it is not intended to ensure protection for individuals.
(see para. 79)
5. The purpose of Article 3 of Regulation No 1 is to ensure that documents which are
addressed by an institution to a Member State or to a person falling within the
jurisdiction of a Member State are drafted in the language of that State. Where
documents are addressed by the Commission to a group of experts consisting of Member
States’ representatives who are responsible for determining the merits of an application
by an individual, that individual cannot rely on an alleged breach of Article 3, since the
documents were not addressed to him. (see para. 86)
6. The principle of observance of the rights of the defence requires that any person who
may be adversely affected by a decision must be placed in a position in which he may
effectively make his views known, at least as regards the evidence on which the
Commission has based its decision.
Where decisions on the repayment or remission of import duties are taken by the
Commission pursuant to Article 239 of Regulation No 2913/92 establishing the
Community Customs Code, the procedure provided for in Article 906a of Regulation No
2454/93 laying down provisions for the implementation of Regulation No 2913/92
ensures that the rights of the defence of the applicant for remission are observed. As
regards the right of the applicant for remission to be given a hearing, neither the specific
provision concerning that procedure nor the general principle of observance of the rights
of the defence gives him the right to such a hearing.
Furthermore, the specific nature of the decision taken by the Commission pursuant to
Article 239 of the Customs Code does not make it at all necessary for the applicant for
remission to be given the opportunity to express his observations orally in addition to the
written submission of his point of view. (see paras 105-106, 108-109)
7. In order to assess whether there is obvious negligence within the meaning of Article
239 of Regulation No 2913/92 establishing the Community Customs Code, account must
be taken in particular of the complexity of the provisions non-compliance with which
resulted in the customs debt being incurred, as well as the professional experience of the
economic operator and the degree of care which he exercised.
In that respect, the Commission has a discretion when adopting a decision pursuant to
Article 239. The repayment or remission of import duties, which can be granted only
subject to certain conditions and in specific circumstances, is an exception to the general
system of import and export arrangements, and the provisions which govern such
repayment are therefore to be interpreted strictly. In particular, as the absence of
obvious negligence is an essential prerequisite for being able to claim repayment or
remission of import duties, it follows that that concept must be interpreted in such a way
that the number of cases of repayment or remission remains limited. As regards any
mistake that resulted in the customs debt being incurred, the operator cannot avoid its
own liability by relying on the mistake, genuine or otherwise, of its agents. In any event,
such a mistake cannot be borne by the Community budget. As regards the economic
operator’s professional experience, it must be examined whether the operator concerned
is one whose business activities consist mainly in import and export transactions and
whether he has already gained some experience in the conduct of such transactions.
As regards the care taken by the operator, where doubts exist as to the exact application
of the provisions non-compliance with which may result in a customs debt being
incurred, the onus is on the operator to make inquiries and seek all possible clarification
to ensure that he does not infringe those provisions. (see paras 135-137, 139-142)
8. The review procedure laid down under Article 11(8) of the basic antidumping
Regulation No 384/96 applies if there is a change in the circumstances on the basis of
which the values applied in the regulation imposing the anti-dumping duties were
established. The purpose of the review procedure is therefore to adapt the duties imposed
to take account of an evolution in the factors which gave rise to them, and the procedure
therefore presupposes that those factors have altered. (see para. 145)
9. It is clear from the wording of Article 905 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code that the repayment of import duties is subject to the fulfilment of two
cumulative conditions, namely the existence of a special situation and the absence of
obvious negligence or deception on the part of the person concerned. Consequently,
repayment of duties must be refused if either of those conditions is not met. (see para.
148)
10. The statement of reasons required by Article 253 EC must disclose in a clear and
unequivocal fashion the reasoning followed by the institution which adopted the measure
in question in such a way as to enable the persons concerned to ascertain the reasons for
the measure and to enable the Community Court to exercise its power of review.
However, it is not necessary for the reasoning to go into all the relevant points of fact
and law. Whether the statement of reasons for a decision meets those requirements must
be assessed with regard not only to its wording but also to its context and to all the legal
rules governing the matter in question.
In the case of decisions to refuse the applications for remission pursuant to Article 239 of
Regulation No 2913/92 establishing the Community Customs Code, the Commission’s
duty to state reasons consists in explaining why the conditions laid down in that provision
have not been fulfilled.
(see paras 156-157)
_______________________________________________________________________
T-101/03 – 22/9/05 – Suproco NV v Commission of the European Communities

Association of the OCTs - Sugar not entitled to OCT origin - Request for a derogation
from the rules of origin - Rejection of the request for a derogation - Duty to give reasons

The statement of reasons required by Article 253 EC must be appropriate to the measure
at issue and must disclose in a clear and unequivocal fashion the reasoning followed by
the institution which adopted the measure in question in such a way as to enable the
persons concerned to ascertain the reasons for the measure and to enable the competent
Community Court to exercise its power of review. The requirements to be satisfied by the
statement of reasons depend on the circumstances of each case, in particular the content
of the measure in question, the nature of the reasons given and the interest which the
addressees of the measure, or other parties to whom it is of direct and individual
concern, may have in obtaining explanations. It is not necessary for the reasoning to go
into all the relevant facts and points of law, since the question whether the statement of
reasons meets the requirements of Article 253 EC must be assessed with regard not only
to its wording but also to its context and to all the legal rules governing the matter in
question.
A Commission Decision refusing to grant a derogation from Decision 2001/822, on the
association of the overseas countries and territories (OCTs), as regards the rules of
origin for sugar from the Netherlands Antilles, does not satisfy the requirements of
Article 253 EC where that decision does not make it possible to determine with sufficient
clarity: (i) the reasoning which led the Commission to conclude that the rules relating to
cumulation of origin could solve the problem and that using Guyanese sugar would not
cause the producer to cease its activities; (ii) whether Article 37(3)(b) of Annex III to the
OCT decision was applied by the Commission or not; and (iii) the method of calculation
used by the Commission in relation to the value added to Guyanese sugar in the context
of a possible application of Article 37(7) of that annex.
(see paras 20, 42-43, 45, 49)
_______________________________________________________________________
C-72/03 – 9/9/04 – Carbonati Apuani Srl v Comune di Carrara

Charges having effect equivalent to a customs duty - Tax levied on marble excavated in
the territory of a municipality on its being transported across the boundaries of the
municipal territory

A tax proportionate to the weight of goods, levied in one municipality of a Member State
only and imposed on one class of goods when those goods are transported beyond the
territorial boundaries of that municipality, constitutes a charge having effect equivalent
to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it
is imposed also on goods the final destination of which is within the Member State
concerned.
First, the very principle of the customs union, as provided for by Article 23 EC, requires
the free movement of goods to be ensured within the union generally, not in trade
between Member States alone, but more broadly throughout the territory of the customs
union, and the absence of charges – whether between States or within a State – exhibiting
the features of a customs duty or of a charge having equivalent effect is a precondition
essential to the realisation of such a customs union. Second, given that the tax at issue is
imposed on all goods in the category in question that cross the territorial boundaries of
the municipality where they are produced, no distinction being made between goods the
final destination of which is in the Member State of production and goods destined for
other Member States, it impinges by its nature and terms on trade between Member
States.
(see paras 22, 24, 26, 35, operative part 1)
_______________________________________________________________________
T-26/03 – 27/9/05 – GeoLogistics BV v Commission of the European Communities

Customs Union - External Community transit operations - Meat destined for Morocco
-Fraud - Application for remission of import duties – Article 239 of Regulation (EEC) No
2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause - Special
situation - No deception or obvious negligence

1. Article 905 of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, a provision which
explains and develops the rule relating to the repayment or remission of import or export
duties contained in Article 239 of the Customs Code, constitutes a general fairness
clause, intended, in particular, to cover exceptional situations which, in themselves, do
not fall within any of the cases provided for in Articles 900 to 904 of the implementing
regulation. It follows from the wording of that article that repayment of import duties is
subject to two cumulative conditions, namely, first, the existence of a special situation
and, second, the absence of deception or obvious negligence on the part of the operator
concerned.
Factors which might constitute a special situation exist, where, in view of the objective of
fairness underlying Article 239 of the Customs Code, factors liable to place the applicant
in an exceptional situation as compared with other operators engaged in the same
business are found to exist with the result that it would be inequitable to require the
trader to bear a loss which he normally would not have incurred. In order to determine
whether certain circumstances constitute a special situation, the Commission must assess
all the relevant facts. Although the Commission has some discretion in applying a
fairness clause, it is required to exercise that power by genuinely balancing, on the one
hand, the Community interest in ensuring that the customs provisions are respected and,
on the other, the interest of the bona fide importer in not suffering loss which goes beyond
normal commercial risk.
In that regard, although the exercise by the customs or police authorities of their
investigative powers is legitimate, the failure, on account of the demands of an
investigation, to inform the person liable that the investigation is being carried out and
that a fraud has been detected constitutes, in the absence of any deception or negligence
on the part of the person liable, a special situation. (see paras 34-35, 39-40, 54, 59-60)
2. In order to determine whether or not there is obvious negligence, within the meaning
of Article 239 of Regulation No 2913/92 establishing the Community Customs Code and
Article 905 of Regulation No 2454/93 laying down provisions for the implementation of
the Customs Code, account must be taken in particular of the complexity of the
provisions non-compliance with which has resulted in the customs debt being incurred,
and the relevant experience of, and care taken by, the trader. However, those three
factors are merely criteria, on the basis of which the Commission must ascertain whether
in a specific case there was obvious negligence on the part of the trader. The Commission
must, as part of its assessment, identify the specific acts or omissions of the person
applying for remission which, taken separately or as a whole, amount to obvious
negligence, and it must do so in the light of, inter alia, the criteria mentioned.
In that regard, although it is the responsibility of traders to guard against ordinary
commercial risks and although, consequently, the mere fact of having suffered financial
loss does not constitute a special situation within the meaning of the Community customs
legislation, it cannot be accepted that as a general rule the failure to take out insurance
amounts, on its own, to obviously negligent conduct on the part of the trader. What is
more, it is clear from Article 239 of Regulation No 2913/92 and Article 905 of Regulation
No 2454/93 that there must be a link between the trader’s alleged negligence and the
special situation. In the absence of such a link, it would be inequitable to refuse the
application for remission or repayment.
(see paras 75, 77, 83-84)
_______________________________________________________________________
T-23/03 – 6/2/07 – CAS SpA v Commission of the European Communities

Association Agreement between the EEC and the Republic of Turkey – Remission of
import duty – Fruit juice concentrate from Turkey – Community Customs Code –
Movement certificates – Special situation – Rights of the defence

The action was dismissed.


_______________________________________________________________________
C-446/02 – 30/4/04 – Hauptzollamt Hamburg-Jonas v Gouralnik & Partner GmbH

Article 104(3) of the Rules of Procedure – Agriculture – Common organisation of the


markets – Export refunds – Inaccurate declaration – Consequences for the validity of the
declaration

For refunds requested before 1 April 1995, Article 78(3) of Regulation No 2913/92
establishing the Community Customs Code and Article 3(5)(a) of Regulation No 3665/87
laying down common detailed rules for the application of the system of export refunds on
agricultural products must be interpreted as meaning that entitlement to an export refund
exists at least at the rate applicable to the product actually exported where it is
established during a control by the customs authorities that the declared and exported
consignment did not consist entirely of the declared product but included another product
to which a lower rate of refund applied and the customs authorities adjusted the
declaration in accordance with Article 78(3) of the Community Customs Code. For the
purposes of the decision, it is not material whether the goods which were the subject of
the incorrect customs declaration are goods similar to those which were in fact declared.
For refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as
amended by Regulation No 2945/94, is applicable in such circumstances.
(see para. 37, operative part 1)
_______________________________________________________________________
C-426/02 – 21/10/04 – Commission of the European Communities v Hellenic Republic

Failure of a Member State to fulfil obligations - Charges having equivalent effect


-Common commercial policy - Imports of goods from Member States and non-member
countries - Charges levied for the validation of invoices

The Court declared that, by applying, for the benefit of the Ethnikos Organismos
Farmakon (National Organisation for Medicines), a charge in respect of the validation of
invoices on the import of raw materials for pharmaceutical use, semi-finished products
and finished products from other Member States or non-member countries, the Hellenic
Republic has failed to fulfil its obligations under Articles 23 EC, 25 EC and 133 EC.
_______________________________________________________________________
C-414/02 – 23/9/04 – Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul v
Finanzlandesdirektion für Oberösterreich

Community Customs Code - Article 202 - Accrual of the customs debt - Unlawful
introduction into the Community customs territory - Meaning of "debtor" of such a debt
-Extension to the employer of liability for the debt of an employee who has committed
irregularities in the performance of customs obligations

Article 202(3) of Regulation No 2913/92 establishing the Community Customs Code is to


be interpreted as meaning that it does not preclude national legislation which, in the
event of unlawful introduction into the customs territory of the Community of goods
subject to import duties, makes the employer co-debtor of the customs debt of the
employee who introduced those goods in the conduct of the employer’s affairs, so long as
such legislation requires that the employer took part in the introduction of the goods and
knew or ought reasonably to have known that such introduction was unlawful.
(see para. 45, operative part)
_______________________________________________________________________
C-396/02 – 16/9/04 – DFDS BV v Inspecteur der Belastingdienst - Douanedistrict
Rotterdam

Common Customs Tariff - Combined Nomenclature - Tariff classification - Subheading


8704 10 - "Minitrac' for the transport and dumping of sand, earth and stones with a
sophisticated tipping system

The fact that a flatbed vehicle is equipped with an intricate, versatile and precise tipping
function does not exclude its classification as a dumper within the meaning of subheading
8704 10 of the Combined Nomenclature set out in Annex I to Regulation No 2658/87 on
the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions
resulting from Regulations Nos 3115/94 and 3009/95.
It is clear from the descriptions of such vehicles in the explanatory notes on the
Combined Nomenclature and the Harmonised System that an essential characteristic of
dumpers is to have a tipping hopper or an opening bottom for the transport of rubble and
various materials. There is, by contrast, no indication in those notes that the form or
functioning of the tipping hoppers can constitute, by themselves, decisive criteria for the
classification of a vehicle as a dumper.
(see paras 32, 37, operative part)
_______________________________________________________________________
C-392/02 – 15/11/05 – Commission of the European Communities v Kingdom of
Denmark

Failure of a Member State to fulfil obligations – Communities’ own resources – Customs


duties legally owing not subsequently recovered following an error by the national
customs authorities – Financial liability of Member States

Member States are required to establish the Communities’ own resources as soon as
their own customs authorities have the necessary particulars and, therefore, are in a
position to calculate the amount of duties arising from a customs debt and determine the
debtor, regardless of the issue of whether the criteria for the application of Article
220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code are met
and therefore whether or not it is possible to proceed with a subsequent entry in the
accounts or post-clearance recovery of the customs duties in question.
In those circumstances, a Member State which fails to establish the Communities’ own
resources and to make the corresponding amount available to the Commission, without
one of the conditions laid down in Article 17(2) of Regulation No 1552/89 implementing
Decision 88/376 on the system of the Communities’ own resources being met, namely that
for reasons of force majeure those amounts could not be collected or that recovery is
impossible in the long term for reasons which cannot be attributed to them, fails to fulfil
its obligations under Community law, in particular under Articles 2 and 8 of Decision
94/728 on the system of the European Communities’ own resources.
(see paras 66, 68, 70, operative part)
_______________________________________________________________________
C-379/02 – 7/10/04 – Skatteministeriet v Imexpo Trading A/S.

Common customs tariff - Tariff headings - Classification in the Combined Nomenclature


– Chairmats

The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff
and statistical nomenclature and on the Common Customs Tariff, as amended by
Regulations Nos 1734/96, 2086/97, 2261/98 and 2204/99, must be construed as meaning
that, in a dispute in which the parties disagree as to whether chairmats made of plastic of
various shapes, specially designed to be placed on the floor beneath office chairs on
wheels to facilitate their movement while also protecting the floor covering, come under
subheading 3918 10 90 or subheading 9403 70 90, classification under the former
subheading is to be preferred.
(see para. 26, operative part)
_______________________________________________________________________
C-361/02 and C-362/02 – 1/7/04 – Elliniko Dimosio v Nikolaos Tsapalos et
Konstantinos Diamantakis

Directive 76/308/EEC - Mutual assistance for the recovery of customs duties


-Application to claims which arose prior to the entry into force of the Directive

Directive 76/308 on mutual assistance for the recovery of claims resulting from
operations forming part of the system of financing the European Agricultural Guidance
and Guarantee Fund, and of the agricultural levies and customs duties, is to be
interpreted as applying to customs claims which arose in one Member State under an
instrument issued by that State before that directive entered into force in the other
Member State, where the requested authority is situated.
Since the purpose of the directive is to eliminate obstacles to the functioning of the
common market arising from problems related to the crossborder recovery of the claims
referred to and to prevent fraudulent operations, it is conceivable that the directive may
apply to claims existing at the time it entered into force in the State where the requested
authority is situated.
(see paras 22-23, operative part)
_______________________________________________________________________
T-332/02 – 14/12/04 – Nordspedizionieri di Danielis Livio & C. Snc, Livio Danielis and
Domenico D'Alessandro v Commission of the European Communities (see Judgment in
Appeal C-62/05 P)
Customs union – Community transit operation – Fraud – Cigarette smuggling –
Remission of import duties – Regulation (EEC) No 1430/79 – Article 13: equitable
provision – Meaning of ‘special situation’

1. The sole aim of Article 13(1) of Regulation No 1430/79 on the repayment or remission
of import or export duties is to enable traders, when certain special conditions are
satisfied and in the absence of deception or obvious negligence, to be exempted from
payment of duties due from them and not to enable them to contest the actual principle of
a customs debt’s being due. The determination of the existence and precise amount of the
debt falls within the competence of the national authorities. Moreover, the decisions
adopted by the national customs authorities may be challenged before the national
courts, which may make a reference to the Court of Justice pursuant to Article 234 EC.
(see paras 33-34, 101)
2. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or
export duties constitutes a general equitable provision designed to cover situations other
than those which arose most often in practice and for which special provision could be
made when the regulation was adopted. That provision is intended to be applied where
the circumstances characterising the relationship between an operator and the
administration are such that it would be inequitable to require the operator to bear a loss
which it normally would not have incurred.
That provision makes the remission of import duties subject to the fulfilment of two
cumulative conditions, namely the existence of a special situation and the absence of
deception or obvious negligence on the part of the economic operator. The Commission
has a margin of discretion in adopting a decision applying that general equitable
provision. Moreover, repayment or remission of import duties constitute an exception to
the usual body of rules governing import and export and, consequently, the provisions
providing for such repayment or remission are to be interpreted strictly. (see paras 40-42)
3. The failure by the national authorities to warn the economic operator liable for a
customs debt, for the demands of an investigation conducted by the customs authorities
or the police and aimed at identifying and apprehending the persons who have carried
out or are planning a fraud, or the accomplices of those persons, that such an
investigation is taking place constitutes, in the absence of any deception or negligence on
the part of the person liable, a special situation within the meaning of the equitable
provision in Article 13(1) of Regulation No 1430/79 on the repayment or remission of
import or export duties. Although it is true that, in the course of such an investigation, it
is legitimate for the national authorities deliberately to allow offences or irregularities to
be committed, to place on the person liable the burden of a customs debt arising from
those choices relating to the prosecution of offences is inimical to the objective of the
equitable provision, in that it puts the person liable in an exceptional situation by
comparison with other operators engaged in the same business.
Although it is also true that the presentation by the person liable, even in good faith, of
documents subsequently found to be falsified does not in itself constitute a special
situation justifying remission of import duties, the finding of such a situation must apply
if there are serious failures by the Commission or the national customs authorities,
facilitating the fraudulent use of the documents.
With respect to customs brokers operating at a Community border having delivered
Community transit certificates after a lorry left a location situated in a third country,
neither operating at a border, rather than at the place of departure of the consignment,
nor the impossibility of inspecting the lorry constitutes a factor liable to place an
operator in an exceptional situation as compared with other operators, since those
factors affect an indefinite number of operators. Accordingly, they cannot give rise to a
special situation within the meaning of the abovementioned provision.
(see paras 51, 70, 72, 84)
_______________________________________________________________________
C-293/02 – 8/11/05 – Jersey Produce Marketing Organisation Ltd v States of Jersey,
Jersey Potato Export Marketing Board, and Top Produce Ltd, Fairview Farm Ltd

Legislation on the export of potatoes from Jersey to the United Kingdom – 1972 Act of
Accession – Protocol No 3 on the Channel Islands and the Isle of Man – Regulation No
706/73 – Articles 23 EC, 25 EC and 29 EC – Charges having an effect equivalent to
customs duties – Measures having an effect equivalent to quantitative restrictions

1. Under Article 1(1) of Protocol No 3 on the Channel Islands and the Isle of Man
annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark,
Ireland and the United Kingdom of Great Britain and Northern Ireland and the
Adjustments to the Treaties, the Community rules on customs matters and quantitative
restrictions are to apply to the Channel Islands and the Isle of Man under the same
conditions as they apply to the United Kingdom, without distinction according to the
nature of the goods concerned. Since agricultural products listed in Annex II to the EEC
Treaty (now Annex I to the EC Treaty) are not subject to any particular treatment in that
regard, Articles 23 EC, 25 EC, 28 EC and 29 EC are applicable to potatoes grown on the
Island of Jersey and to products derived from them on that island. The application of those
provisions to agricultural products cannot be made subject to the adoption by the
Council, under Article 1(2) of Protocol No 3, of the measures judged necessary to ensure
the proper operation of the regime put in place as regards the Channel Islands and the
Isle of Man, or to the existence, within the Community, of a common organisation of the
markets in the sectors concerned. (see paras 35-36, 38-39, 41)
2. The Channel Islands, the Isle of Man and the United Kingdom must be treated as one
Member State for the purposes of the application of Articles 23 EC, 25 EC, 28 EC and 29
EC. (see para. 54)
3. The combined provisions of Articles 23 EC and 25 EC and Article 1 of Protocol No 3
on the Channel Islands and the Isle of Man annexed to the Act concerning the Conditions
of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland and the Adjustments to the Treaties are to be interpreted as
precluding Jersey legislation which confers on an exports framework body the power to
impose on Jersey potato producers a contribution, the amount of which is fixed by
reference to the quantities of potatoes produced by the parties concerned and exported to
the United Kingdom.
It is in that regard irrelevant that the legislation in question applies only to situations
forming part of that Member State’s internal trade. The customs union necessarily
implies that the free movement of goods should be ensured between Member States and,
in more general terms, within the customs union, and nothing rules out, in this case, the
possibility that potatoes dispatched to the United Kingdom might then be re-exported to
other Member States.
Community law also precludes a contribution levied under the same conditions, the
amount of which, however, is fixed by such a body by reference to the agricultural area
used by the parties concerned for growing potatoes, to the extent to which the income
therefrom serves to finance activities undertaken by that body contrary to Article 29 EC.
(see paras 61, 64-65, 67, 85, operative part 2-3)
4. The combined provisions of Articles 29 EC and 1 of Protocol No 3 on the Channel
Islands and the Isle of Man annexed to the Act concerning the Conditions of Accession of
the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and
Northern Ireland and the Adjustments to the Treaties are to be interpreted as precluding
Jersey legislation which:
– on the one hand, prohibits, with penalties imposed for non-compliance, Jersey
producers from offering for export or exporting their potatoes to the United Kingdom
market unless they are registered with an exports framework body and have entered into
a marketing agreement with it for the purpose of determining, in particular, the areas
which may be planted with crops for export as well as the identity of those authorised to
acquire those crops, and,
– on the other hand, prohibits, also with penalties imposed for non-compliance, all
marketing organisations from effecting such exports unless they are party to a
management agreement with that same framework body for the purpose of determining,
in particular, the identity of the sellers from whom it is permissible for them to obtain
their supplies.
It is in that regard irrelevant that such legislation concerns only exports to the United
Kingdom since nothing rules out that potatoes dispatched to the United Kingdom might
then be re-exported to other Member States.
(see paras 79, 85, operative part 1)
_______________________________________________________________________
T-240/02 – 17/12/04 – Koninklijke Coöperatie Cosun UA v Commission of the
European Communities (see Judgment in Appeal C-68/05 P)

Agriculture – Common organisation of the markets – Sugar – Charge due for C sugar
disposed of on the internal market – Customs duty – Application for remission – Equity
clause under Article 13 of Regulation (EEC) No 1430/79 – Concept of import and export
duties – Principles of equality and legal certainty – Equity

The charge imposed on a sugar producer under Article 26 of Regulation No 1785/81 on


the common organisation of the markets in the sugar sector and Article 3 of Regulation
No 2670/81 laying down detailed implementing rules in respect of sugar production in
excess of the quota by reason of the non-disposal of certain quantities of C sugar outside
the Community does not constitute an import or export duty for the purposes of Articles
13 and 14 of Regulation No 1430/79 on the repayment or remission of import or export
duties, which allow for such a repayment or remission in the special situations which
result from circumstances in which no deception or obvious negligence may be attributed
to the person concerned. The charge does not constitute a customs duty or a charge
having equivalent effect or an agricultural charge within the meaning of Article 1(2)(a)
and (b) of Regulation No 1430/79. Nor, having regard to its objectives and the basis of its
calculation, can it be considered as being converted into an import duty, since, unlike
such a duty, it is a penalty which is primarily deterrent in nature and is intended to
ensure that the prohibition on disposing of C sugar on the internal market is complied
with.
Accordingly, a Commission decision rejecting the application for
remission as
inadmissible under Article 13 of Regulation No 1430/79 does not infringe those
provisions. Furthermore, such a decision does not infringe the principles of equality and
legal certainty and a supposed principle of equity.
(see paras 38, 44-45, 47, 58, 61-62)
_______________________________________________________________________
C-238/02 and C-246/02 – 4/3/04 – Hauptzollamt Hamburg-Stadt v Kazimieras Viluckas
and Ricardas Jonusas

Community Customs Code - Extent of the obligation as to presentation of goods arriving


at customs - National legislation providing for an express declaration in respect of hidden
goods at the time of presentation of goods at customs - Persons having brought in the
goods and being under a duty to declare them - Concept of customs debtor

The presentation to customs of goods introduced into the Community, in terms of Article
4(19) of Regulation No 2913/92 establishing the Community Customs Code, concerns all
goods, including those hidden in a secret compartment specially made for that purpose.
The obligation to present goods as set out in Article 38 of the Code rests, as provided by
Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods,
even though the goods were hidden in the vehicle without their knowledge.
The person who has introduced goods into the customs territory of the Community
without mentioning them in the notification of presentation to customs is a customs
debtor within the meaning of the first indent of Article 202(3) of the Customs Code, even
if other persons can be declared debtors in respect of the same goods on the basis of the
other provisions of that article.
(see paras 24, 29-30, operative part)
_______________________________________________________________________
C-133/02 and C-134/02 – 22/1/04 - Timmermans Transport & Logistics BV v
Inspecteur der Belastingdienst - Douanedistrict Roosendaal and Hoogenboom Production
Ltd v Inspecteur der Belastingdienst - Douanedistrict Rotterdam.

Classification of goods for customs tariff purposes - Binding tariff information


-Conditions for the revocation of an information

Article 9(1) read in conjunction with Article 12(5)(a)(iii) of Regulation No 2913/92


establishing the Community Customs Code, as amended by Regulation No 82/97, must be
interpreted as meaning that they provide the customs authorities with a legal basis for
withdrawing a binding tariff information (BTI) where those authorities change the
interpretation given therein of the legal provisions applicable to the tariff classification
of the goods concerned.
First, in those provisions, the Community legislature has unequivocally provided that a
BTI ceases to be valid where one of the conditions set for its issue was not or is no longer
fulfilled. Secondly, since the issue of a BTI is subject to proper justification for the
interpretation by the customs authorities of the legal provisions applicable to the tariff
classification of the goods concerned, those authorities are entitled to consider, where it
appears to them that that interpretation is wrong, that one of the conditions laid down for
the issue of a BTI is no longer fulfilled and to revoke that BTI with a view to amending
the tariff classification of the goods concerned.
(see paras 23-25, 28, operative part)
_______________________________________________________________________
C-130/02 – 4/3/04 – Krings GmbH v Oberfinanzdirektion Nürnberg

Common Customs Tariff - Combined Nomenclature - Tariff heading - Preparation with a


basis of extract of tea

Subheading 2101 20 92 (Preparations with a basis of extracts, essences or concentrates


of tea or maté) of the Combined Nomenclature of the Common Customs Tariff in the
version set out in Regulation No 2031/2001 amending Annex I to Regulation No 2658/87
on the tariff and statistical nomenclature and on the Common Customs Tariff must be
interpreted as covering goods having a low content of extract of tea, such as those
described in points 2 and 3 of the table set out in the annex to Regulation No 306/2001
concerning the classification of certain goods in the Combined Nomenclature (goods
whose content of extract of tea does not exceed 2.5% and 2.2% of the total weight
respectively).
The classification decided by the Commission in that regulation is applicable by analogy
to two mixtures intended for the production of beverages with a basis of tea, both
composed of 64% granulated sugar and 1.9% extract of tea and water, to which is added,
in one of the two mixtures, 0.8% citric acid.
(see paras 32, 38, operative part 1-2)
_______________________________________________________________________
C-115/02 – 23/10/03 – Administration des douanes et droits indirects v Rioglass SA and
Transremar SL (European Court reports 2003 Page I-12705)

Free movement of goods - Measures having equivalent effect - Procedures for detention
under customs control - Goods in transit intended for the market of a non-member
country - Spare parts for motor cars

1. Goods lawfully manufactured in one Member State in transit within another Member
State come within the scope of Articles 28 EC to 30 EC even if they are intended for a
non-member country. The Customs Union established by the Treaty necessarily implies
that the free movement of goods between Member States should be ensured. That freedom
could not itself be complete if it were possible for Member States to impede or interfere in
any way with the movement of goods in transit so that it is necessary, as a consequence of
the Customs Union and in the mutual interest of the Member States, to acknowledge the
existence of a general principle of freedom of transit of goods within the Community. (see
para. 18, 20)
2. Article 28 EC is to be interpreted as precluding the implementation, by the customs
authorities of a Member State, pursuant to a legislative measure of that Member State
concerning intellectual property and on the ground of suspected infringement of trade
mark, of procedures for detention of goods lawfully manufactured in another Member
State and intended, following their transit through the territory of the first Member State,
to be placed on the market in a non-member country. A measure of detention under
customs control which delays the movement of goods and may block their movement
completely, has the effect of restricting the free movement of goods and therefore
constitutes an obstacle to that freedom. Such a measure cannot be justified on the ground
of protection of industrial and commercial property within the meaning of Article 30 EC
since that transit does not involve any marketing of the goods in question and is therefore
not liable to infringe the specific subject-matter of the trade mark. (see paras 21, 24, 27,
29-30, operative part) ____________________________________________________
C-105/02 – 5/10/06 – Commission of the European Communities v Federal Republic of
Germany

Failure of a Member State to fulfil obligations – Communities’ own resources –


Undischarged TIR carnets – Failure to forward the corresponding own resources

The Court declared that:


– by failing properly to process certain transit documents (TIR carnets), with the result
that the own resources arising therefrom were not correctly entered in the accounts or
made available to the Commission of the European Communities within the prescribed
periods,
– by failing to inform the Commission of the European Communities of all the other
uncontested customs duties treated in the same way (entry in the B accounts instead of
entry in the A accounts) in respect of the non-discharge of TIR carnets by the German
customs authorities from 1994 until the amendment of the Decree of the Federal Minister
for Finance of 11 September 1996,
the Federal Republic of Germany has failed to fulfil its obligations under Council
Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision
88/376/EEC, Euratom on the system of the Communities’ own resources, replaced, with
effect from 31 May 2000, by Council Regulation (EC, Euratom) No 1150/2000 of 22 May
2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own
resources.
_______________________________________________________________________
C-104/02 – 14/4/05 – Commission of the European Communities v Federal Republic of
Germany

Failure of a Member State to fulfil its obligations - Regulations (EEC) Nos 2913/92 and
2454/93 - External Community transit procedure - Customs authorities - Procedures for
collecting import duties - Time-limits - Non-compliance - Community own resources
-Making available - Time-limit - Non-compliance - Default interest - Member State
concerned - Default on payment

1. The purpose of an action under Article 226 EC is to obtain a declaration that a


Member State has failed to fulfil its Community obligations. When there is a finding of
infringement, Article 228 EC expressly requires the Member State in question to take the
measures necessary to comply with the judgment of the Court of Justice. The Court
cannot, however, order the Member State to take specific measures. Consequently, the
Court cannot, in the context of infringement proceedings, rule on pleas which seek an
order that the Member State pay default interest. Such claims must be declared
inadmissible. (see paras 49-51)
2. In the case of customs debts incurred following irregularities committed in the external
Community transit system, it is clear from the wording itself of the third sentence of
Article 379(2) of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, that the Member
States are obliged to instigate the recovery procedure provided for therein upon expiry of
the three-month time-limit when notified by the office of departure that the consignment
has not been presented on time at the office of destination. That interpretation is also
necessary in order to guarantee diligent and uniform application by the competent
authorities of the provisions governing recovery of customs debts, with a view to making
Community own resources available efficiently and speedily.
Late communication by a Member State of the amount of the debt to the principal, in
violation of Articles 218(3) and 221(1) of Regulation No 2913/92, necessarily implies a
delay in the establishment of the Community’s entitlement to the own resources referred
to in Article 2 of Regulation No 1552/89 implementing Decision 88/376 on the system of
the Communities’ own resources.
(see paras 78, 89, 91, operative part 1)
_______________________________________________________________________
T-104/02– 21/9/04 – Société française de transports Gondrand Frères SA v
Commission of the European Communities

Remission of import duties – Article 1(3) of Regulation (EC) No 3319/94 – Meaning of


‘special situation’ under Article 905 of Regulation (EEC) No 2454/93 – Anti-dumping
duty on imports of urea ammonium nitrate solution originating in Poland – Direct
invoicing of the importer

1. Applications for repayment or remission of import duties on grounds of fairness made


to the Commission pursuant to Article 239 of Regulation No 2913/92 establishing the
Community Customs Code in conjunction with Article 905 of Regulation No 2454/93
laying down provisions for the implementation of Regulation No 2913/92 do not concern
the question as to whether or not an anti-dumping debt exists, but seek solely to establish
whether or not there are special circumstances which may, from the point of view of
fairness, justify repayment of import or export duties. The making of such an application
to the Commission presupposes that the debt in question exists, since the applicant has
other legal remedies to challenge the existence of the debt, in particular under Council
Regulation (EC) No 384/96 on protection against dumped imports from countries not
members of the European Community, as amended.
(see para. 25)
2. Under Article 905 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 the repayment of import duties is dependent on
the fulfilment of two concurrent conditions, (i) the existence of a special situation and (ii)
the absence of obvious negligence or deception on the part of the person concerned. A
special situation exists where factors liable to place the applicant in an exceptional
situation as compared with other operators engaged in the same business are found to
exist.
Any difficulties in interpreting Article 1(3) of Regulation No 3319/94 would not, however,
show that circumstances imposing a definitive anti-dumping duty on imports of urea
ammonium nitrate solution originating from Bulgaria and Poland existed such as to
create a special situation with regard to the applicant. First the rule laid down by Article
1(3), second subparagraph, which is aimed at situations in which the exporter or
producer has not directly invoiced an unrelated importer, in order to exclude all forms of
triangular arrangement, which could entail a wish that the anti-dumping measures would
be circumvented, presents no particular interpretative difficulty. Second, those
interpretative difficulties would affect in the same way all traders importing urea
ammonium nitrate solution from Poland and would not place the applicant in an
exceptional situation by comparison with many other traders.
(see paras 57-58, 62, 66-67)
_______________________________________________________________________
C-91/02 – 16/10/03 – Hannl + Hofstetter Internationale Spedition GmbH v
Finanzlandesdirektion für Wien, Niederösterreich und Burgenland (European Court
reports 2003 Page I-12077)

Community Customs Code - Customs debt on importation - Charging of interest on


arrears

Regulation No 2913/92 establishing the Community Customs Code and Regulation No


2454/93 laying down provisions for the implementation of Regulation No 2913/92 must
be interpreted as not precluding legislation which provides for an increase in duty in the
event of the incurrence of a customs debt under Articles 202 to 205 or 210 or 211 of the
Customs Code or in the event of subsequent recovery under Article 220 of the Code,
which all concern situations involving breach by the trader concerned of the Community
customs legislation corresponding to the amount which would have been incurred as
interest on arrears for the period between the incurrence of the customs debt and the
entry in the accounts or, in the case of subsequent recovery under Article 220 of the
Code, between the date when the customs debt originally entered in the accounts was due
and the subsequent entry in the accounts of that debt, provided that the rate of interest is
determined under conditions which are comparable to those applicable under national
law to infringements of the same nature and gravity and which make the penalty effective,
proportionate and dissuasive. It is for the national court to determine whether the rate of
increase at issue in the main proceedings is consistent with those principles. (see paras
19, 23, operative part)
_______________________________________________________________________
C-82/02 – 27/2/03 – Agence maritime Lalemant NV v Malzfabrik Tivoli GmbH,
Malteurop GIE and Belgisch Interventie- en Restitutiebureau and Malzfabrik Tivoli
GmbH v Belgisch Interventie- en Restitutiebureau (European Court reports 2003 Page
I-02105)

Article 104(3) of the Rules of Procedure - Agriculture - Export refunds - Conditions for
payment - Leaving the geographical territory of the Community – Definition

Article 9(1) of Regulation No 2730/79, which makes the payment of the export refund
subject to the condition that, as matters stand, the product must have left the
geographical territory of the Community, must be interpreted as meaning that the
expression geographical territory of the Community refers to a physical concept and that
the requirement that the product in respect of which export refunds have been applied for
must have left the geographical territory of the Community is not satisfied either by
placing the product under customs control or by bringing it within the customs
warehousing procedure. (see para. 46, operative part)
_______________________________________________________________________
C-60/02 – 7/1/04 – Criminal proceedings against X

Counterfeit and pirated goods - No criminal penalty for the transit of counterfeit goods
-Compatibility with Regulation (EC) No 3295/94

1. Article 11 of Regulation No 3295/94 laying down measures concerning the entry into
the Community and the export and re-export from the Community of goods infringing
certain intellectual property rights, as amended by Regulation No 241/1999, requires
Member States to introduce penalties for infringements of the prohibition laid down in
Article 2 of the regulation on the release for free circulation, export, re-export and
placing under a suspensive procedure of counterfeit goods. Those provisions are
applicable to situations in which goods in transit between two countries not belonging to
the European Community are temporarily detained in a Member State by the customs
authorities of that State. (see paras 55, 64, operative part 1)
2. The duty to interpret national law so as to be compatible with Community law, in the
light of its wording and purpose, in order to attain the aim pursued by the latter, cannot,
of itself and independently of a law adopted by a Member State, have the effect of
determining or aggravating the liability in criminal law of an entity which has failed to
meet the requirements of a Community regulation.
That obligation finds its limits in the general principles of law which form part of the
Community legal system and, in particular, in the principles of legal certainty and
non-retroactivity. In particular, the principle of non-retroactivity of penalties, enshrined
in Article 7 of the European Convention for the Protection of Human Rights and
constituting a general principle of Community law common to the constitutional
traditions of the Member States, prohibits the imposition of criminal penalties for conduct
which is not prohibited by a national rule, even if the national rule is contrary to
Community law.
(see paras 61, 63-64, operative part 2)
_______________________________________________________________________
C-56/02 – 22/5/03 – IHW Rebmann GmbH v Hauptzollamt Weiden (European Court
reports 2003 Page I-05499)

Free movement of goods - Trade with third countries - Procedure for returned goods
-Article 187 of Regulation (EEC) No 2913/92 - Reimportation of compensating products
originally re-exported subsequent to an inward processing procedure - Determination of
the import duty legally owed - Burden of proof in respect of the proportion of the value
of the reimported products corresponding to inward processing

The first paragraph of Article 187 of Regulation No 2913/92 establishing the Community
Customs Code allows the reimportation, with relief from import duties, of compensating
products originally exported or re-exported subsequent to an inward processing
procedure. The second paragraph of that provision, according to which [t]he amount of
import duty legally owed shall be determined on the basis of the rules applicable under
the inward processing procedure, must be interpreted as meaning that, where an
importer has provided proof that the imported goods are compensating products
qualifying for application of the procedure for returned goods under Article 848 of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92, but is unable to provide all the information necessary for calculating the duty
legally owed, the administrative cooperation procedure provided for in Articles 611(2)(b)
and 613 of Regulation No 2454/93 must be used by the customs authorities responsible
for accepting the declaration. Those authorities must therefore ask the supervising
customs office, using the INF 1 sheet, to communicate to them the amount of duty legally
owed. Article 15 of the Customs Code, relating to professional secrecy, does not preclude
use of that procedure. (see paras 35-36, operative part)
_______________________________________________________________________
T-53/02 – 13/9/05 – Ricosmos BV v Commission of the European Communities (see
Order in Appeal C-420/05 P)

Customs law - External Community transit operation concerning cigarettes - Fraud


-Application for remission of import duties - Regulation (EEC) No 2913/92 - Regulation
(EEC) No 2454/93 - Equity clause - Compliance with time-limits - Rights of the defence
- Principle of proportionality - Concept of obvious negligence

1. Under the second paragraph of Article 907 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code, in a procedure concerning the repayment or remission of import or
export duties, the Commission’s decision regarding the repayment or remission must be
adopted within nine months of the date of receipt by it of the file concerning the
application for remission and, where the Commission has had to request from the
Member State supplementary information in order to enable it to reach a determination,
the period of nine months is to be extended by a period equivalent to that between the
date on which that request was sent by the Commission and the date of the receipt by it of
the reply by the national authorities.
As the period allowed the Commission may thus be extended, the applicant for remission
cannot be sure that simply because the period of nine months has expired his application
has been accepted, notwithstanding the fact that he has not been informed that the period
has been extended. (see paras 54-55)
2. The customs rules do not provide that, in a procedure concerning the repayment or
remission of import or export duties, the person concerned must be informed without
delay that the Commission has requested further information from the national
authorities under the third subparagraph of Article 905(2) of Regulation No 2454/93
laying down provisions for the implementation of Regulation No 2913/92 establishing the
Community Customs Code or must be informed of the replies of those authorities or must
immediately be notified of the content of such exchanges.
Pursuant to Article 906a of the implementing regulation, it is only when the Commission,
after examining the application for remission, has reached a preliminary view
unfavourable thereto that it is to communicate its objections to the applicant in writing,
together with all the documents on which it bases those objections. Likewise, the first
subparagraph of Article 905(2) of the implementing regulation which provides that the
case sent to the Commission by the national authorities must, inter alia, include a
statement, signed by the applicant certifying that he has read the case and stating either
that he has nothing to add or listing all the additional information that he considers
should be included, is intended only to ensure that the operator who seeks a remission
and has not necessarily been involved in the preparation of the case by the competent
national authorities may exercise effectively his right to be heard during the first stage of
the administrative procedure, which takes place at national level. (see paras 61-63)
3. According to the principle of observance of the rights of the defence, it cannot be for
the Commission alone to decide, in a procedure concerning the repayment or remission
of import or export duties, which documents are useful to the person concerned for the
purposes of that procedure and to which he must be able to have access under Article
906(a) of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code where the
Commission intends to take a decision unfavourable towards that party and communicate
its objections to him.
The Commission must therefore, at the time when it communicates its objections, give the
applicant an opportunity to examine all the documents likely to be relevant in support of
the request for remission or repayment; in order to do so it must at the very least provide
the applicant with a complete list of the non-confidential documents on file containing
sufficiently precise information for the applicant to assess, in full knowledge of the facts,
whether the documents described are likely to be useful to it. (see paras 72, 74)
4. Article 905 of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, the provision
which sets out and expands on the rule concerning the repayment or remission of import
or export duties in Article 239 of the Customs Code, constitutes a general fairness clause
intended in particular to cover exceptional situations which, in themselves, do not fall
within any of the cases provided for in Articles 900 to 904 of the implementing
regulation. The repayment of import duties is subject to two cumulative conditions,
namely, first, the existence of a special situation and, secondly, the absence of deception
or obvious negligence on the part of the economic operator. Furthermore, there must be
a connection between the negligence of which the operator is accused and the special
situation established. However, it is not necessary for the special situation to be the
direct and immediate consequence of negligence on the part of the party concerned. In
that connection it is sufficient for the negligence to have contributed to or facilitated the
removal of goods from customs supervision.
When the Commission adopts a decision under that general rule as to fairness, it enjoys a
margin of discretion. Furthermore, since the repayment or remission of import duties,
which can be granted only in certain circumstances and in situations which are
specifically provided for, is an exception to the normal rules applicable to imports and
exports, the provisions under which such repayment or remission may be granted must be
interpreted strictly. (see paras 103, 150, 154)
5. In a procedure concerning the repayment or remission of import or export duties, the
Commission does not infringe the principle of proportionality by not taking into
consideration, in its examination of the application for remission, the extent of the
financial loss that a decision to reject it would entail for the economic operator
concerned. The amount of the customs debt imposed on an operator reflects the financial
significance of the goods which formed the subject-matter of the Community transit
operations at issue, in particular the amount of duties and taxes imposed on those goods.
The fact that the amount claimed by way of import duties is considerable comes within
the category of business risks to which the economic operator is exposed. Accordingly the
extent of the debt whose remission is sought is not in itself a factor capable of influencing
the assessment of the conditions to which such remission is subject.
(see para. 161)
6. The provisions of Article 239 of Regulation No 2913/92 establishing the Community
Customs Code and of Article 905 of Regulation No 2454/93 laying down provisions for
the implementation of Regulation No 2913/92 establishing the Community Customs Code
have the sole objective of making it possible, where certain specific conditions are
satisfied and in the absence of obvious negligence or deception, to exempt economic
operators from the payment of the duties for which they are liable; their objective is not
to enable the very principle of whether the customs debt has arisen to be called in
question. In fact, determination of the existence and of the exact amount of the debt is a
matter for the national authorities. However, the applications submitted to the
Commission under the abovementioned provisions do not concern the question whether
the provisions of substantive customs law have been correctly applied by the national
customs authorities. The decisions adopted by those authorities may be contested before
the national courts, those courts being able to bring a matter before the Court under
Article 234 EC.
(see para. 165)
_______________________________________________________________________
C-460/01 - 14/4/05 - Commission of the European Communities v Kingdom of the
ÜÏÏ^ÏInds

Failure of a Member State to fulfil its obligations - Regulations (EEC) Nos 2913/92 and
2454/93 - External Community transit procedure - Customs authorities - Procedures for
collecting import duties - Time-limits - Non-compliance - Community own resources
-Making available - Time-limit - Non-compliance - Default interest - Member State
concerned - Default on payment

1. Under the Community transit system, when the principal of an external Community
transit operation has not, within three months of being notified by the office of departure
that the consignment has not been presented on time at the office of destination, provided
proof of the regularity of the transit operation in question, a Member State which fails to
proceed with the entry in the accounts of the customs debt and other relevant duties and
communicate the amount thereof to the debtor within three days of the timeUlimit fixed in
Articles 218(3) and 221(1) of Regulation No 2913/92 establishing the Community
Customs Code fails to fulfil its obligations under the third sentence of Article 379(2) of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92.
It is clear from the very wording of that provision that the Member States are obliged to
instigate the recovery procedure upon expiry of the three-month time-limit referred to
therein. That interpretation is also necessary in order to guarantee diligent and uniform
application by the competent authorities of the provisions governing recovery of customs
debts, with a view to making Community own resources available efficiently and speedily.
(see paras 69, 94, operative part)
2. Under the Community transit system, late communication by a Member State of the
amount of the import duties to the debtor of the customs debt, in violation of Articles
218(3) and 221(1) of Regulation No 2913/92 establishing the Community Customs Code,
necessarily implies a delay in the establishment of the Community’s entitlement to the
own resources referred to in Article 2 of Regulation No 1552/89 implementing Decision
88/376 on the system of the Communities’ own resources and, under Article 11 of that
regulation, any delay in making the entry of own resources in the Commission’s account
gives rise to the payment of default interest by the Member State concerned at the interest
rate applicable to the entire period of delay. That interest is payable in respect of any
delay, regardless of the reason for the delay in making the entry in the Commission’s
account.
(see paras 85, 91, 94, operative part)
C-411/01 – 2/11/03 – GEFCO SA v Receveur principal des douanes

Community Customs Code and implementing Regulation - Outward processing


procedure - Exemption from the import duties applied to compensating products
-Amount deductible in the event of an incorrect indication of a tariff heading in the
temporary export declaration for the goods - Failure having no significant effect on the
correct operation of the outward processing procedure

Articles 145 to 151 of Regulation No 2913/92 establishing the Community Customs Code
must be interpreted as meaning that an economic operator who has declared goods
under an incorrect tariff heading at the time of their temporary exportation from
Community territory under the outward processing procedure is not prohibited, even in
the absence of a formal amendment of the temporary export declaration, from adducing
proof that the incorrect declaration had no significant effect on the correct operation of
the procedure for the purposes of Article 150(2) of that regulation. Such proof must make
it possible to establish, without the slightest ambiguity, that the compensating products
have resulted from processing of the temporary export goods. It is for the national court
to determine, in the light of all the circumstances of the main proceedings, whether or not
the economic operator has adduced that proof. If so, the amount of the import duty which
would be applicable to the temporary export goods on the basis of their correct tariff
heading may be deducted when the compensating products are released for free
circulation. (see para. 55, operative part 1-4)
_______________________________________________________________________
C-387/01 – 29/4/04 – Harald Weigel and Ingrid Weigel v Finanzlandesdirektion für
Vorarlberg

Articles 23 EC to 25 EC - Internal taxation - Free movement of workers – Importation of


a motor vehicle – Customs duties and charges having equivalent effect – Discriminatory
taxation – Sixth VAT Directive – Turnover tax

1. Directive 83/183 on tax exemptions applicable to permanent imports from a Member


State of the personal property of individuals does not preclude the imposition of a tax on
consumption charged on registration of imported second-hand motor vehicles on a
private individual from one Member State who, on taking up residence in another
Member State because of a change of place of work, imports his or her car into the latter
State, since the operative event attracting that tax is first-time registration in the State,
which is not necessarily linked to the act of importation. Thus such a tax must be
regarded as falling outside the scope of the exemption in Article 1(1) of the directive. (see
paras 47, 49)
2. Articles 39 EC and 12 EC do not preclude the imposition of a consumption tax
charged on registration of imported second-hand motor vehicles on a private individual
from one Member State who on taking up residence in another Member State because of
a change of place of work imports his or her car into the latter State. Although it is true
that such a tax is likely to have a negative bearing on the decision of migrant workers to
exercise their right to freedom of movement, the Treaty offers, however, no guarantee to
a worker that transferring his activities to a Member State other than the one in which he
previously resided will be neutral as regards taxation. Given the disparities in the
legislation of the Member States in this area, such a transfer may be to the worker’s
advantage in terms of indirect taxation or not, according to circumstance. It follows that,
in principle, any disadvantage, by comparison with the situation in which the worker
pursued his activities prior to the transfer, is not contrary to Article 39 EC if the
legislation in question does not place that worker at a disadvantage as compared with
those who were already subject to it. (see paras 54-55, 60, operative part 1)
3. A tax on consumption charged on registration of imported second-hand motor vehicles
constitutes internal taxation of which the compatibility with Community law must be
examined not under Articles 23 EC and 25 EC, relating to charges having equivalent
effect, but under Article 90 EC relating to internal taxation, since it is manifestly of a
fiscal nature and is charged not by reason of the vehicle crossing the border of the
Member State which established it, but in view of other operative events, of which first-
time registration of the vehicle in that State is one, and thus forms part of a general
system of internal dues applying systematically to categories of products. (see paras
64-65, 81, operative part 2)
4. Article 90 EC must be interpreted as meaning that it does not preclude a tax on
consumption charged on registration of imported second-hand motor vehicles to the
extent that the charges to that tax precisely reflect the actual depreciation of second-hand
vehicles imported by private individuals and produce the desired outcome that the tax
charged on imported second-hand vehicles in no case exceeds the amount of the residual
tax incorporated in the value of similar second-hand vehicles already registered in the
State.
However, that obligation precludes the imposition, in the case of the importation by a
private individual of a second-hand car from another Member State, of a 20% surcharge
of the tax in question since that 20% surcharge is generally assessed only on the base tax
charged on imported second-hand vehicles and applies only in exceptional circumstances
to that charged on purely domestic transactions.
(see paras 81, 87, 89 operative part 3-4)
_______________________________________________________________________
C-383/01 – 17/6/03 – De Danske Bilimportører v Skatteministeriet, Told- og
Skattestyrelsen (European Court reports 2003 Page I-06065)

Articles 23 EC to 25 EC - Free movement of goods - Charge on the registration of new


motor vehicles - Internal taxation - Measure having an equivalent effect to a quantitative
restriction

Since it is part of a general system of internal dues applied systematically to categories of


vehicles in accordance with objective criteria, irrespective of the origin of the products, a
charge on the registration of new motor vehicles established by a Member State which
does not have any domestic production of vehicles constitutes internal taxation whose
compatibility with Community law must be examined in the light of Article 90 EC. That
provision must be interpreted as not precluding such a charge where there is no domestic
production of cars nor of any products liable to compete with cars in the Member State
concerned. Although, moreover, it is true that it is not permissible for the Member States
to impose on products which thus escape the application of the prohibitions contained in
Article 90 EC charges of such an amount that the free movement of goods within the
common market would be impeded as far as those goods were concerned, it cannot be
considered that that charge has ceased to be internal taxation and should be classified as
a measure having equivalent effect to a quantitative restriction, for the purposes of
Article 28 EC, where the figures as to the number of new vehicles registered in the
Member State concerned, and thus imported into that Member State, do not in any way
show that the free movement of that type of goods between that Member State and the
other Member States is impeded. (see paras 35, 39-43, operative part)
_______________________________________________________________________
C-337/01 – 12/2/04 – Hamann International GmbH Spedition + Logistik v Hauptzollamt
Hamburg-Stadt

Community Customs Code - Customs debt on import - Removal of goods from customs
supervision

Article 203(1) of Regulation No 2913/92 establishing the Community Customs Code is to


be interpreted as meaning that there is removal from customs supervision for the
purposes of that provision when, before the entry into force of Regulation No 993/2001
amending Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code, non-Community
goods which were subject to the customs warehousing procedure and intended for re
export from the customs territory of the Community have been removed and transported
from the customs warehouse to the customs office at the point of exit without having been
placed under the external transit procedure and the customs authorities have been
unable, if only for a short time, to ensure customs supervision of those goods.
(see para. 36, operative part)
_______________________________________________________________________
T-309/01 and T-239/02 – 17/9/03 – Peter Biegi Nahrungsmittel GmbH and
Commonfood Handelsgesellschaft für Agrar-Produkte mbH v Commission of the
European Communities (European Court reports 2003 Page II-03147) (see Judgment in
Appeal C-499/03 P)

Subsequent accounting for import duties - Conditions - Article 220(2)(b) of Regulation


(EC) No 2193/92 - Detectable error - Duty of care - Regulation (EC) No 774/94
-Combined nomenclature - WTO tariff quotas

Concerning the second of the cumulative conditions, laid down by Article 220(2)(b) of
Regulation No 2913/92 establishing the Community Customs Code, which have to be met
for the competent authorities to be able to waive subsequent accounting for import duties,
according to which condition the error by the competent customs authorities must be of
such a kind that it could not reasonably have been detected by a taxable person acting in
good faith, the question whether such an error was detectable must be determined having
regard to the nature of the error, the professional experience of the traders concerned
and the degree of care which they exercised. The nature of the error is to be determined
in the light of the complexity or otherwise of the rules concerned and the period of time
during which the authorities persisted in their error. As regards the professional
experience of the trader concerned, it needs to be determined whether he is a
professional economic trader, whose business essentially consists in import and export
operations and whether he already had some experience of trading in the goods in
question. As regards the degree of care shown by the trader concerned, the latter is
under a duty, as soon as he himself has doubts as to the need for an import licence in
order to benefit from a preferential tariff quota, to make enquiries and seek the greatest
clarification possible in order to ascertain whether or not those doubts are well founded.
On that point, such a trader must ascertain the Community law applicable to the
transactions which he undertakes by reading the relevant issues of the Official Journal.
As from the date of their publication in the Official Journal of the European
Communities, the applicable Community tariff provisions constitute the sole relevant
positive law on the matter and all persons are deemed to be aware of them; a customs
tariff manual drawn up by the national authorities, by contrast, is merely a guide for
customs operations, with purely indicative value. Where the conditions for applying
Article 220(2)(b) of that regulation are not met, the fact that action for post-clearance
recovery of customs duties is taken does not constitute an infringement of the
proportionality principle. (see paras 55, 61-62, 69, 73, 75, 87)
_______________________________________________________________________
C-290/01 – 4/3/04 – Receveur principal des douanes de Villepinte v Derudder & Cie
SA, and Tang Frères

Free movement of goods - Release for free circulation - Taking of a sample - Possibility
of challenging the representativeness of that sample

Directive 79/695 on the harmonisation of procedures for the release of goods for free
circulation and Directive 82/57 laying down certain provisions for implementing that
directive, as amended by Directive 83/371, together with Regulation No 2913/92
establishing the Community Customs Code, must be interpreted as meaning that it is
permissible for a customs declarant or his representative present when a sample was
taken by the customs authorities of imported goods and who did not at the time challenge
the representativeness of that sample to challenge its representativeness when requested
by those authorities to pay additional import duties following their analysis of that
sample, provided that the goods concerned have not been released or, if they have been
released, that they have not been altered in any way whatsoever, which is for that
declarant to prove.
(see para. 47, operative part)
_______________________________________________________________________
T-282/01 – 12/2/04 – Aslantrans AG v Commission of the European Communities

Customs duties - Repayment of import duties - Shipment of cigarettes stolen during


transport - Notion of special situation within the meaning of Article 905 of Regulation
(EEC) No 2454/93 - Compliance with the time-limit

1. When the customs authorities of a Member State have submitted an application for
reimbursement of customs duties based on the existence of a special situation within the
meaning of Article 239 of Regulation No 2913/92 establishing the Community Customs
Code and it is found that the information supplied is not sufficient to enable a decision to
be taken by it on the case concerned in full knowledge of the facts, the Commission,
according to the third subparagraph of Article 905(2) of Regulation No 2454/93 laying
down provisions for the implementation of the Customs Code, is entitled to ask for
additional information to be supplied. In order to ascertain whether such a request
validly extended, pursuant to the second paragraph of Article 907 of the implementing
regulation, the period provided for the Commission to adopt a position on the application
for reimbursement, it is necessary to examine whether the information sought by that
request was likely to have an effect on that adoption of a position. In order to determine
whether the circumstances of the case constitute a special situation, the Commission is
required to assess all the relevant facts. (see paras 37-39)
2. Article 905 of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, which explains
and expands the rule relating to the reimbursement or remission of import or export
duties contained in Article 239 of the Customs Code, constitutes a general fairness clause
intended, inter alia, to cover exceptional situations which, in themselves, do not fall
within any of the cases provided for in Articles 900 to 904 of the implementing
regulation. Since the repayment of import duties is subject to two cumulative conditions,
namely, first, the existence of a special situation and, secondly, the absence of deception
or obvious negligence on the part of the economic operator, repayment of duties must be
refused if either of those conditions is not met. The Commission enjoys a power of
assessment when it adopts a decision pursuant to that general equitable provision.
Moreover, since the repayment or remission of import duties, which may be granted only
subject to certain conditions and in cases which have been specifically provided for,
constitute an exception to the usual body of rules governing import and export, the
provisions providing for such repayment or remission are to be interpreted strictly.
Circumstances which constitute a special situation within the meaning of Article 905 of
the implementing regulation exist where, having regard to the objective of fairness
underlying Article 239 of the Customs Code, factors liable to place the applicant in an
exceptional situation as compared with other operators engaged in the same business are
found to exist. The theft of goods during transport must be regarded as one of the most
frequently reported incidents, against which traders are normally insured, in particular
those which specialise in the haulage of ‘high-risk’ goods, that is to say those which are
heavily taxed. (see paras 52-53, 55-56, 65) ____________________________________
C-266/01 – 15/5/03 – Préservatrice foncière TIARD SA v Staat der Nederlanden
(European Court reports 2003 Page I-04867)

Brussels Convention - Article 1 - Scope - Concept of civil and commercial matters


-Concept of customs matters - Action based on a guarantee contract between the State
and an insurance company - Contract entered into in order to satisfy a condition imposed
by the State on associations of carriers, principal debtors, under Article 6 of the TIR
Convention

The first paragraph of Article 1 of the Convention of 27 September 1968 on Jurisdiction


and the Enforcement of Judgments in Civil and Commercial Matters as amended by the
Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and
the United Kingdom of Great Britain and Northern Ireland), by the Convention of 25
October 1982 on the Accession of the Hellenic Republic and by the Convention of 26
May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic must
be interpreted as follows:
─ civil and commercial matters, within the meaning of the first sentence of that
provision, covers a claim by which a Contracting State seeks to enforce against a person
governed by private law a private-law guarantee contract which was concluded in order
to enable a third person to supply a guarantee required and defined by that State, in so
far as the legal relationship between the creditor and the guarantor, under the guarantee
contract, does not entail the exercise by the State of powers going beyond those existing
under the rules applicable to relations between private individuals;
─ customs matters, within the meaning of the second sentence of that provision, does
not cover a claim by which a Contracting State seeks to enforce a guarantee contract
intended to guarantee the payment of a customs debt, where the legal relationship
between the State and the guarantor, under that contract, does not entail the exercise by
the State of powers going beyond those existing under the rules applicable to relations
between private individuals, even if the guarantor may raise pleas in defence which
necessitate an investigation into the existence and content of the customs debt.
(see paras 36, 44, operative part)
_______________________________________________________________________
T-243/01 – 30/9/03 – Sony Computer Entertainment Europe Ltd v Commission of the
European Communities (European Court reports 2003 Page II-04189)

Action for annulment - Common Customs Tariff - Tariff headings - Game console
-Classification in the Combined Nomenclature

1. Although it is true that the regulations for classifying specific goods in the Combined
Nomenclature, adopted by the Commission pursuant to the first indent of Article 9(1)(a)
of Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff, are of general application, since they concern all products of the type
described, regardless of their individual characteristics and origin, and they take effect,
in the interests of the uniform application of the Common Customs Tariff, in relation to
all customs authorities in the Community and all importers, such a measure of general
application may, however, in certain circumstances, be of direct and individual concern
to some economic operators and, therefore, may be challenged by them under the fourth
paragraph of Article 230 EC. This is so with respect to individual concern when an
undertaking which imports a given product has triggered the administrative procedure
which led to the adoption of the contested regulation and that procedure has concerned
specifically the tariff classification of that product, when that undertaking is the only
party whose legal position is affected as a result of adoption of the regulation, when the
contested regulation focuses specifically on the classification of the product imported by
the undertaking in question and there are no other products with identical features, it
being borne in mind that a possible application by analogy to similar products would not
preclude the undertaking from being individually concerned, when the undertaking is the
sole authorised importer of that product into the Community. (see paras 58-59, 63-64,
69, 71, 74-75)
2. The Council has conferred upon the Commission, acting in cooperation with the
customs experts of the Member States, a broad discretion to define the subject-matter of
tariff headings falling to be considered for the classification of particular goods.
However, the Commission's power to adopt the measures mentioned in Article 9(1)(a),
(b), (d) and (e) of Regulation No 2658/87 on the tariff and statistical nomenclature and
on the Common Customs Tariff does not authorise it to alter the subject-matter of the
tariff headings which have been defined on the basis of the Harmonised System
established by the 1983 International Convention on the Harmonised Commodity
Description and Coding System whose scope the Community has undertaken not to
modify under Article 3 thereof. (see para. 103)
3. The decisive criterion for the customs classification of goods must be sought generally
in their objective characteristics and qualities, as defined in the relevant heading of the
Common Customs Tariff and in the notes to the sections or chapters. (see para. 104)
4. It is true that the Harmonised System Explanatory Notes published by the Word
Customs Organisation constitute an important means of ensuring the uniform application
of the Common Customs Tariff by the customs authorities of the Member States and as
such may be considered a valid aid to the interpretation of the tariff. However, those
notes do not have legally binding force so that, where appropriate, it is necessary to
consider whether their content is in accordance with the actual provisions of the
Common Customs Tariff and whether they alter the meaning of such provisions. (see
para. 116)
5. It is possible to classify the game console described in the Annex to Regulation No
1400/2001 concerning the classification of certain goods in the Combined Nomenclature
under CN Code 9504 10 00: video games of a kind used with a television receiver. Thus,
in the absence of a definition of video games in the wording of subheading 9504 10 in the
section and chapter notes, in the Harmonised System Explanatory Notes (HSEN)
published by the World Customs Organisation, and in the Combined Nomenclature
explanatory notes drawn up by the Commission, it is appropriate to consider as video
games any products which are intended to be used, exclusively or mainly, for playing
video games, even though they might be used for other purposes, as is the console in
question here, which, both by the manner in which it is imported, sold and presented to
the public and by the way it is configured, is intended to be used mainly for playing video
games, even though it may also be used for other purposes, such as playing video DVDs
and audio CDs, in addition to automatic data processing. In addition, since neither the
wording of subheading 9504 10 nor the section and chapter notes pertaining thereto
contain any indications, much less limitations, as to the operation and/or the composition
of the products coming thereunder, the mere fact that the console may operate as an
automatic data-processing machine and that video games are only one type of file that it
can process does not by itself preclude its being classified under subheading 9504 10,
since it is quite clear that it is intended mainly to be used to run video games. This
finding is, moreover, not affected by HSEN(b) to heading 9504, which, in providing that
that heading does not cover products intended to be used mainly for playing video games,
would in effect modify and, more specifically, limit the scope of that heading and
subheading 9504 10; this cannot be accepted. Lastly, the classification of an automatic
data-processing machine according to the type of file processed does not place an undue
limitation on the scope of heading 8471 by introducing a new rule expanding the specific
function requirement of Note 5(E) to Chapter 84 to include all functions covered by any
other heading or subheading of the Combined Nomenclature. Although it is true that the
console in question does not perform any specific function other than data processing
and that the playing of video games is not one of its specific functions per se, the mere
fact that an apparatus fulfils the conditions of Note 5(A) to Chapter 84 and does not
perform any specific function other than data processing for the purposes of Note 5(E) to
that chapter does not by itself preclude such an apparatus from being classified under
another heading. (see paras 109, 111-112, 114-115, 117-119)
6. The obligation to state reasons which is incumbent on the Commission when it adopts
a customs classification regulation requires it to state clearly the legal basis for the
classification, in order to inform the persons concerned of the justification for the
measure adopted and to enable the Community Court to exercise its powers of review. A
simple reference to a general rule of interpretation of the Combined Nomenclature does
not fulfil that obligation. (see para. 131)
7. Regulation No 1400/2001 concerning the classification of certain goods in the
Combined Nomenclature is vitiated by an error of law in so far as it classifies the game
console described in the Annex to that regulation under CN Code 9504 10 00 and the
accompanying CD-ROM under CN Code 8524 39 90. Although it is true that such a
console can be classified under heading 9504, the Commission committed an error of law
by determining, on the basis of general rule 3(b) of interpretation of the Combined
Nomenclature, the classification of the console, having regard to the function which gives
it its essential character, because that rule covers only the classification of [m]ixtures,
composite goods consisting of different materials or made up of different components,
and goods put up in sets for retail sale, and provides for the classification of mixtures
and composite goods according to the material or component which gives them their
essential character. This interpretation of general rule 3(b) is confirmed by the HSEN to
that rule, and by the principle that it is necessary, in carrying out the tariff classification
of a product, to identify, from among the materials of which it is composed, the one which
gives it its essential character, which may be done by determining whether the product
would retain its characteristic properties if one or other of its constituents were removed
from it. Since a possible error in the classification of the console automatically entails
the invalidity of the classification of the accompanying CD-ROM, there is also an error
in that regard. Accordingly, the regulation in question must be annulled. (see paras 119,
123-126, 128, 133-134, operative part 1)
_______________________________________________________________________
C-222/01 – 29/4/04 – British American Tobacco Manufacturing BV v Hauptzollamt
Krefeld

Free movement of goods - External Community transit - Temporary removal of transit


and transport documents - Breaking of seals and partial unloading of the goods - Removal
of goods from customs supervision - Incurring of a customs debt on importation
-Unsuspected presence of undercover customs agents - Special circumstances justifying
the remission or repayment of import duties - Responsibility of the principal in the case
of deception or obvious negligence on the part of persons engaged by him

1. Questions referred for a preliminary ruling are not inadmissible where referred in a
context in which the Community rules to be interpreted apply only by virtue of a
reference made by domestic law, since, where, in relation to purely internal situations,
domestic legislation adopts solutions which are consistent with those adopted in
Community law in order, in particular, to ensure a single procedure in comparable
situations, it is clearly in the Community interest that, in order to forestall future
differences of interpretation, provisions or concepts taken from Community law should be
interpreted uniformly, irrespective of the circumstances in which they are to apply. (see
para. 40)
2. In so far as the temporary removal of the T 1 transit document from the goods to which
it relates prevents the presentation of that document at any possible requisition by the
customs service, such a removal constitutes a removal of those goods from customs
supervision within the meaning of Article 2(1)(c) of Regulation No 2144/87, which
provides that a customs debt is incurred in such a case, even if the customs authorities
have not demanded presentation of the document or established that it could not have
been presented to them without considerable delay. (see para. 56, operative part 1)
3. The fact that infringements of the Community transit system originate in the conduct of
an undercover agent belonging to the customs services constitutes a special situation
within the meaning of Article 13(1) of Regulation No 1430/79, which may, in appropriate
cases, justify the remission or repayment of duties paid by the principal, provided no
deception or obvious negligence may be attributed to him.
Deception or obvious negligence on the part of persons whom the principal has engaged
to carry out obligations contracted under that system does not, in itself, exclude
repayment to the principal of duties incurred as a result of the removal of goods placed
under that system from customs supervision, provided no deception or obvious
negligence is attributable to the principal.
(see paras 66, 73, operative part 2-3)
_______________________________________________________________________
C-203/01 – 08/07/2002 – Fazenda Pública v Antero

Article 104(3) of the Rules of Procedure — Post-clearance recovery of import duties —


Entry in the accounts of the import duties to be collected— Calculation of the time-limit
for taking action for recovery

The expression "entry in the accounts" used in Article 1(2)(c) and in the second
subparagraph of Article 2(1) of Council Regulation (EEC) No 1697/79 of 24 July 1979
on the post-clearance recovery of import duties or export duties which have not been
required of the person liable for payment on goods entered for a customs procedure
involving the obligation to pay such duties refers to the administrative act determining
the amount of the import or export duties to be collected by the competent authorities and
not to the entry by the customs authorities in accounts books, or on equivalent computer
media, of such amount. Such entry is not a condition prior essential to the taking of
action for post-clearance recovery.
_______________________________________________________________________
C-152/01 – 20/11/03 – Kyocera Electronics Europe GmbH v Hauptzollamt Krefeld

Common Customs Tariff - Customs value - Determination of the transaction value


-Interest payable under a financing arrangement - Exclusion - Conditions - Interest
distinguished from the price actually paid or payable - Declaration not mentioning the
interest due or paid

1. All the language versions of a Community provision must, in principle, be recognised


as having the same weight and this cannot vary according to the size of the population of
the Member States using the language in question. In order to maintain a uniform
interpretation of Community law, in the case of divergence between those versions, the
provision in question must therefore be interpreted by reference to the purpose and
general scheme of the rules of which it forms part. (see paras 32-33)
2. Article 3(2)(a) of Regulation No 1495/80 implementing certain provisions of
Regulation No 1224/80 on the valuation of goods for customs purposes, as amended by
Regulation No 220/85, which provides that the exclusion of interest from the customs
value under a financing arrangement is subject to the requirement that charges for
interest must be distinguished from the price paid or payable for the imported goods, is to
be interpreted as meaning that payments of interest are distinguished from the price of
the goods even if, at the time when the customs declaration is accepted, the customs
authorities are in possession only of the invoice for the net price of the goods and neither
that invoice nor the declaration of customs value reveal expressly or by implication that
the buyer paid or must pay interest to the seller in the context of the import transaction in
question.( see paras 30, 43, operative part)
C-112/01 – 14/11/02 – SPKR 4 nr. 3482 ApS v Skatteministeriet, Told- og
Skattestyrelsen, Aktieselskabet af 11/9 1996 and Arden Transport & Spedition ved Søren
Lauritsen og Lene Lauritsen I/S (European Court reports 2002 Page I-10655)

Regulations (EEC) Nos 2913/92 and 2454/93 - External Community transit - Offence or
irregularity - Recovery of a customs debt – Conditions

Article 379(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, read in conjunction with Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code, should be
interpreted as meaning that a customs debt arising by reason of an offence or irregularity
committed in connection with a consignment placed under the external Community
transit procedure can be recovered from the principal by the office of departure even if it
did not notify the principal before the end of the 11th month following the date of
registration of the Community transit declaration that the consignment had not been
presented at the office of destination and that the place of the offence or irregularity
could not be established. The same applies if the office of departure did not follow an
administrative procedure for the transmission of information, such as the early warning
system, or if the failure to comply with the time-limit was due to error or negligence on
the part of that office.
_______________________________________________________________________
C-78/01 – 23/9/03 – Bundesverband Güterkraftverkehr und Logistik eV (BGL) v
Bundesrepublik Deutschland (European Court reports 2003 Page I-09543)

Free movement of goods - External transit operation - Transport under cover of a TIR
carnet - Offences or irregularities - Possibility for a guaranteeing association to prove the
place where the offence or irregularity was committed - Time-limit for furnishing proof
-Existence of an obligation for the Member State which detects an offence or irregularity
to investigate the place where it was committed

1. The first subparagraph of Article 454(3) of Regulation No 2454/93 laying down


provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code does not preclude a guaranteeing association against which proceedings
are brought by a Member State for payment of customs duties on the basis of the
guarantee contract it has concluded with that State in accordance with the TIR
Convention from being able to furnish proof of the place where the offence or irregularity
was committed, provided that that proof is furnished within the period laid down in that
provision, that time-limit being peremptory. (see para. 58, operative part)
2. The first subparagraph of Article 454(3) and Article 455 of Regulation No 2454/93
laying down provisions for the implementation of Regulation No 2913/92 establishing the
Community Customs Code must be interpreted as meaning that the period within which a
guaranteeing association against which proceedings are brought by a Member State for
payment of customs duties on the basis of the guarantee contract it has concluded with
that State in accordance with the TIR Convention may furnish proof of the place where
the offence or irregularity was committed is two years running from the date of the claim
for payment made to it. As those provisions are manifestly erroneous and provide for
several periods which could be taken into consideration, and having regard to the
principle of legal certainty which constitutes a general principle of Community law and
requires in particular that rules imposing charges on a taxpayer are clear and precise so
that he can ascertain unequivocally what his rights and obligations are and take steps
accordingly, the period applicable to the guaranteeing association is the one which is
most favourable to it out of those which may be identified by the various references made
in Articles 454 and 455 of the implementing regulation. (see paras 71-73, operative part
2)
3. Articles 454 and 455 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code do
not require the Member State which detects an offence or irregularity in connection with
a transport operation under cover of a TIR carnet, in addition to making the notifications
prescribed in Article 455(1) of that regulation and an enquiry to the office of destination,
to investigate the actual place where the offence or irregularity was committed and the
identity of the customs debtors, by seeking the administrative assistance of another
Member State for elucidation of the facts. (see para. 84, operative part 3) ____________
C-34/01 to C-38/01 – 27/11/03 – Enirisorse SpA v Ministero delle Finanze

Articles 23 EC to 25 EC - Customs duties and charges having equivalent effect – Public


undertakings - Transfer to public undertakings of a proportion of port charges paid to the
State - Competition - Abuse of a dominant position - State aid - Internal taxation - Free
movement of goods

The scope of Article 30 of the Treaty (now, after amendment, Article 28 EC) does not
include provisions of the Treaty relating to charges having effect equivalent to customs
duties (Article 12 of the Treaty (now, after amendment, Article 25 EC)) and Article 16 of
the Treaty (repealed by the Treaty of Amsterdam) or relating to discriminatory internal
taxation (Article 95 of the Treaty (now, after amendment, Article 90 EC)). It follows that
if charges, such as those collected in a port on all loading and unloading of goods, fall
within the scope of Article 12 or Article 95 of the Treaty, it is one or other of those
provisions that will apply and not Article 30 of the Treaty. If those charges should prove
not to constitute an impediment prohibited by Article 12 or 95, the result would not be
that they automatically fell within the ambit of Article 30. (see paras 56, 58)
_______________________________________________________________________
C-30/01 – 23/9/03 – Commission of the European Communities v United Kingdom
(European Court reports 2003 Page I-09481)

Failure of a Member State to fulfil its obligations – Gibraltar – Customs territory of the
Community

The exclusion of Gibraltar from the customs territory of the Community by virtue of the
Act of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland implies that neither the Treaty rules on free movement of
goods nor the rules of secondary Community legislation intended, as regards free
circulation of goods, to ensure approximation of the laws, regulations and administrative
provisions of the Member States pursuant to Articles 94 EC and 95 EC are applicable to
it. That interpretation is not called into question by the rules applicable to Ceuta and
Melilla, which contain an express provision that goods originating in those territories
are exempt from customs duties following their release into free circulation in the
customs territory of the Community. Rather, those rules confirm the soundness of that
interpretation, to the effect that exclusion from the customs territory of the Community
entails the inapplicability of the Treaty provisions and secondary legislation on trade in
goods, unless otherwise expressly provided. Of course, failure to apply the directives
adopted under Articles 94 EC or 95 EC to Gibraltar may endanger the consistency of
other Community policies, such as environmental protection, where the objectives of
those policies are pursued as an ancillary aim by those directives. However, that fact
cannot lead to the extension of the territorial scope of those directives beyond the limits
imposed by the Treaty and by the Act of Accession of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland. (see paras 59-60, 63)
_______________________________________________________________________
C-422/00 – 16/1/03 – Capespan International plc v Commissioners of Customs & Excise
(European Court reports 2003 Page I-00597)

Community Customs Code - Fruit and vegetables - Calculation of customs value

1. The customs value of fruit and vegetables coming within the scope of Regulation No
3223/94 on detailed rules for the application of the import arrangements for fruit and
vegetables must, in respect of the period between 18 March 1997 and 17 July 1998 (day
prior to entry into force of amendments to the regulation) inclusive, be determined in
accordance with the rules for calculating entry price provided for in Article 5 of that
regulation, and not in accordance with the general rules provided for in the Community
Customs Code and its implementing regulation. In fact that regulation, which the
Commission was authorised to enact, seeks to amend the rules for determining the
customs value of fruit and vegetables; provisions contained in agricultural legislation
may legitimately establish special rules by reference to those contained in the Community
Customs Code. (see paras 69, 78-79, 82, operative part 1)
2. Regulation No 1498/98 amending Regulation No 3223/94 on detailed rules for the
application of the import arrangements for fruit and vegetables, and adding paragraph
1b to Article 5 of Regulation No 3223/94, under which the customs value of fruit and
vegetables coming within the scope thereof must be determined on the same basis as that
of the entry price of products into the Community is not invalid either on the ground that
the Commission exceeded its powers, or for breach of the Community's international
obligations, or for infringement of essential formal requirements in regard to the detailed
arrangements for adoption of measures implementing the Community Customs Code.
(see paras 92-104, operative part 2)
3. Article 5 of Regulation No 3223/94 on detailed rules for the application of import
arrangements for fruit and vegetables, which offers importers of fruit and vegetables
coming within the scope of that regulation the choice between three methods for
determining the entry price of their consignments, must be interpreted as meaning that an
importer who is not in a position to make a definitive declaration of customs value at the
time of customs clearance may give a provisional indication of that value under Article
254 of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code only where the value
of the abovementioned products is determined according to the method provided for in
Article 5(1)(b) of Regulation No 3223/94, that is to say where the value of the products
may be determined on the basis of the unit price relating to sales of identical or similar
imported products. The question whether an importer may give a provisional indication
of customs value does not arise in the case of the other methods for determining the entry
price of the products set out in subparagraphs (a) and (c) of the provision at issue. (see
paras 107, 110, 112, operative part 3) _______________________________________
C-389/00 – 27/2/03 – Commission of the European Communities v Federal Republic of
Germany (European Court reports 2003 Page I-02001)

Failure to fulfil obligations - Articles 23 and 25 EC - Charge having an equivalent effect-


Export of waste - Basle Convention - Regulation No 259/93 - Contribution to a solidarity
fund

By subjecting shipments of waste to other Member States to a mandatory contribution to


the solidarity fund for the return of waste, a Member State fails to fulfil its obligations
under Articles 23 EC and 25 EC. Such a contribution cannot be considered as payment
for a service actually provided specifically to the economic operators in question, since
compliance by that Member State with an obligation which Community law imposes on
all the Member States in pursuit of protection of health and the environment does not
confer on exporters of waste established in its territory any specific or definite benefit.
Moreover, the contribution to the solidarity fund cannot be viewed as a lawful charge in
the form of compensation for a measure imposed by Community law with a view to
promoting the free movement of goods, since it has not been established that the
contribution collected when each shipment of waste is carried out is in any way related to
the actual costs that operation is likely to generate for the State in the event that it
becomes necessary to return the waste shipped and to dispose of or recover it. (see paras
35, 37-38, 45, 51, operative part)
_______________________________________________________________________
C-379/00 – 5/12/02 – Overland Footwear (I) Ltd v Commissioners of Customs &
Excise (European Court reports 2002 Page I-11133)

Customs Code - Customs value of imported goods - Price of goods and buying
commission - Reimbursement of duty payable on full amount

1. Articles 29, 32 and 33 of Regulation No 2913/92 establishing the Community Customs


Code must be construed as meaning that a buying commission which is included in the
customs value declared and is not shown separately from the selling price of the goods in
the import declaration must be considered to be part of the transaction value within the
meaning of Article 29 of the customs code and is, therefore, dutiable. (see paras 17, 25,
operative part 1)
2. In a situation where the customs authorities have agreed to undertake revision of an
import declaration and have adopted a decision regularising the situation within the
meaning of Article 78(3) of Regulation No 2913/92 establishing the Community Customs
Code taking account of the fact that the declaration was incomplete as a result of an
inadvertent error by the declarant, those authorities may not go back on that decision.
(see paras 24-25, operative part 2) __________________________________________
T-329/00 – 27/2/03 – Bonn Fleisch Ex- und Import GmbH v Commission of the
European Communities (European Court reports 2003 Page II-00287)

Customs duties - Imports of beef from South America - Article 13(1) of Regulation
(EEC) No 1430/79 - Application for remission of import duties - Rights of the defence
-Special situation

Annuls the Commission's decision of 25 July 2000 finding that the remission of import
duties is not justified in a particular case (REM 49/99).
_______________________________________________________________________
C-282/00 – 15/5/03 – Refinarias de Açúcar Reunidas SA (RAR) v Sociedade de
Indústrias Agricolas Açoreanas SA (European Court reports 2003 Page I-04741)

Sugar - Meaning of 'processing of products' - Article 24 of Regulation No 2913/92

Article 24 of Regulation No 2913/92 provides that [g]oods whose production involved


more than one country shall be deemed to originate in the country where they underwent
their last, substantial, economically justified processing or working in an undertaking
equipped for that purpose and resulting in the manufacture of a new product or
representing an important stage of manufacture.
It follows from that article that the processing of a product must represent at least an
important stage of manufacture.
(see paras 31 and 32)
_______________________________________________________________________
C-276/00 – 7/2/02 – Turbon International GmbH v Oberfinanzdirektion Koblenz
(European Court reports 2002 Page I-01389)

Common customs tariff - Tariff headings - Classification in the Combined Nomenclature


of ink-cartridges compatible with Epson Stylus Colour printers - Inks (heading 3215)
-Parts and accessories of machines under heading 8471 (heading 8473)

Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Regulation No 1734/96, must be interpreted as
meaning that an ink-cartridge without integrated print head, consisting of plastic casing,
foam, a metal screen, seals, tape seal, labels, ink and packing material, is to be classified,
pursuant to general rule 3(b) for the interpretation of the Combined Nomenclature, under
sub-heading No 3215 90 80 of the Combined Nomenclature. The element which gives the
cartridge its essential character is the ink which it contains.
The fact, moreover, that the product in question can only be used, as regards both the
cartridge and the ink, in a particular type of printer does not mean that it can be
described as a part or accessory of a printer within the meaning of heading 8473 of the
Combined Nomenclature, in so far as the cartridge plays no particular role in the actual
mechanical functioning of the printer and merely enables it to fulfil its usual function.
(see paras 27, 31-32, 35, operative part)
_______________________________________________________________________
C-260/00 to C-263/00 – 7/11/02 – Lohmann GmbH & Co. KG (C-260/00 à C-262/00)
and Medi Bayreuth Weihermüller & Voigtmann GmbH & Co. KG (C-263/00) v
Oberfinanzdirektion Koblenz (European Court reports 2002 Page I-10045)

Common Customs Tariff - Tariff headings - Classification in the Combined


Nomenclature of wrist orthoses, lumbar support belts, elbow supports and knee supports
-Note 1(b) to Chapter 90 of the Combined Nomenclature

1. Tariff heading 9021 of the Combined Nomenclature, contained in Annex I to Council


Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
1734/96 of 9 September 1996, must be interpreted as meaning that products such as wrist
orthoses, lumbar support belts, elbow supports and knee supports fall within that heading
if they display characteristics which distinguish them, in particular by the materials of
which they are made, their method of operation or their adjustability to the patient's
specific handicaps, from ordinary belts and supports for general use. It is for the
referring court to ascertain whether that is the case in the main proceedings.
2. The term `solely' in Note 1(b) to Chapter 90 of the Combined Nomenclature must be
interpreted as meaning that the note does not exclude from that chapter belts and
supports of which characteristics other than their elasticity contribute to a significant
extent to the intended effect on the organ to be supported or held. _________________
C-259/00 – 7/3/02 – Biochem Zusatzstoffe Handels- und Produktions GmbH v
Oberfinanzdirektion Nürnberg (European Court reports 2002 Page I-02461)

Common Customs Tariff - Tariff headings - Tariff classification of immunoglobulin


concentrates from colostrum - Classification in the Combined Nomenclature

On a proper construction of Annex I to Regulation No 2658/87 on the tariff and


statistical nomenclature and on the Common Customs Tariff, as amended by Regulation
No 2086/97, immunoglobulin concentrates from dried, defatted and decaseinated
colostrum, standardised by means of lactose, are to be classified as pharmaceutical
products in Chapter 30 of the Combined Nomenclature. Products based on colostrum, a
gland secretion for organo-therapeutic uses, supplemented by immunoglobulins, have a
therapeutic purpose within the meaning of heading 3001 of the Combined Nomenclature.
(see paras 26-27, operative part)
_______________________________________________________________________
C-251/00 – 14/11/02 – Ilumitrónica - Iluminação e Electrónica Ldª v Chefe da Divisão
de Procedimentos Aduaneiros e Fiscais/Direcção das Alfândegas de Lisboa, and
Ministério Público (European Court reports 2002 Page I-10433)

EEC-Turkey Association Agreement - Importation of television sets from Turkey


-Determination of the person liable for the customs debt - Post-clearance recovery of
customs duties

1. Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-
clearance recovery of import duties or export duties which have not been required of the
person liable for payment on goods entered for a customs procedure involving the
obligation to pay such duties must be interpreted as meaning that:
- in order to determine whether there is an `error made by the competent authorities
themselves', account must be taken both of the conduct of the customs authorities which
issued the certificate permitting the application of preferential treatment and of that of
the central customs authorities;
- the routine issuing by the authorities of the exporting country of certificates permitting
the application of preferential treatment under association rules constitutes evidence of
such an error when those authorities must have been aware, on the one hand, of the
existence in the exporting country of a policy of encouraging exports, involving the
duty-free importation of components originating in third countries for incorporation in
goods intended for export to the Community and, on the other hand, of the absence in the
exporting country of provisions enabling collection of the compensatory levy to which the
application of preferential treatment to exports to the Community of goods thus obtained
was subject;
- the fact that some of the relevant provisions of the association rules were not published
in the Official Journal of the European Communities and the circumstance that those
provisions were not implemented, or were implemented incorrectly, in the exporting
country over a period of more than 20 years constitute evidence that such an error could
not reasonably have been detected by the person liable.
2. The conduct of the authorities of the exporting country does not affect the
determination of the person by whom the customs debt is payable or the right of the
authorities of the importing country to take action for post-clearance recovery thereof.
3. Articles 22 and 25 of the Agreement establishing an association between the European
Economic Community and Turkey do not require the national customs authorities of a
Member State, acting on the Commission's advice, to have recourse to the procedure
provided for by those articles before taking action for post-clearance recovery of import
duties.
T-239/00 – 4/7/02 – SCI UK Ltd v Commission of the European Communities
(European Court reports 2002 Page II-02957)

Repayment of import duties - Article 13 of Regulation (EEC) No 1430/79 - Meaning of


'special situation'

1. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or


export duties constitutes a general equitable provision designed to cover situations other
than those which arose most often in practice and for which special provision could be
made when the regulation was adopted.
That provision makes the repayment of import duties subject to the fulfilment of two
cumulative conditions, namely the existence of a special situation and the absence of
deception or obvious negligence on the part of the economic operator. (see paras 44-45)
2. Article 13 of Regulation No 1430/97 on the repayment or remission of import or export
duties is intended to be applied where the circumstances characterising the relationship
between a trader and the administration are such that it would be inequitable to require
the trader to bear a loss which it normally would not have incurred. In applying that
article, the Commission has a discretion, which it is required to exercise by actually
balancing, on the one hand, the Community interest in ensuring that the customs
provisions are respected and, on the other, the interest of the importer acting in good
faith not to incur damage beyond normal commercial risk. Consequently, when
examining whether an application for remission is justified, it cannot simply take account
of the conduct of importers. It must also assess the impact of its own conduct on the
resulting situation even if it is at fault.
The possibility that price undertaking documents are subsequently discovered to be
invalid is a trade risk inherent in the importation business. Post-clearance verifications
would be largely deprived of their usefulness if the use of false certificates could, of itself,
justify granting a remission. The opposite result could discourage traders from adopting
an inquiring attitude and make the public purse bear a risk which falls mainly on traders.
It is the responsibility of traders to make the necessary arrangements in their contractual
relations to guard against the risks of an action for post-clearance payment. The
presentation of documents subsequently found to be invalid cannot in itself constitute a
special situation justifying repayment of import duties even where such documents were
presented in good faith. A different conclusion, namely that there was a special situation,
would only be possible in the event of serious failures by the Commission or the customs
authorities, facilitating the fraudulent use of the price undertaking documents.
(see paras 50-51, 55-59)
_______________________________________________________________________
C-190/00 – 3/5/01 – Criminal proceedings against Édouard Balguerie and Others and
Société Balguerie and Others, liable in a civil capacity (European Court reports 2001
Page I-03437)

Regulation (EEC) No 4142/87 - Conditions under which certain goods are eligible on
import for a favourable tariff arrangement by reason of their end-use - Regulations (EEC)
Nos 1517/91, 1431/92 and 1421/93 - Suspension of autonomous Common Customs
Tariff duties – Dates

Regulation No 4142/87, determining the conditions under which certain goods are
eligible on import for a favourable tariff arrangement by reason of their end-use, and
Regulations Nos 1517/91, 1431/92 and 1421/93, temporarily suspending the autonomous
Common Customs Tariff duties on a number of agricultural products, do not preclude
dates imported in original packings of a net content not exceeding 11 kg from being
eligible for suspension of the autonomous Common Customs Tariff duties provided for in
the latter three regulations and applying to dates, fresh or dried, for packing for retail
sale into immediate packings of a net content not exceeding 11 kg. In order to achieve the
purpose of the tariff suspension, namely to protect the interests of user industries and
processing industries, it is sufficient that dates have actually been packed or repacked
before sale, irrespective of the weight of the content of the packings in which they are
imported into the Community.
(see paras 34, 37-38, 40 and operative part)
_______________________________________________________________________
C-156/00 – 13/3/03 – Kingdom of the Netherlands v Commission of the European
Communities. European Court reports 2003 Page I-02527.

Action for annulment of Commission Decision C (2000) 485 final - Remission of import
duties - Inward processing - Lack of equivalence between Community products and
imported products

1. The mere fact that a possible remission of customs duties following a decision by the
Commission on the basis of Articles 905 and 907 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code has consequences for the compensatory interest applied on those duties by
the competent customs authorities does not in any way imply that the Commission is
empowered to proceed with the remission of that interest. The Commission is competent
only to take a decision on the remission of import duties and may not rule on
compensatory interest. (see paras 48-49)
2. Under Article 221(3) of Regulation No 2913/92 establishing the Community Customs
Code, communication to the debtor of the amount of duty owed is not to take place after
the expiry of a period of three years from the date on which the customs debt was
incurred, except where it is as a result of an act that could give rise to criminal court
proceedings that the customs authorities were unable to determine the exact amount
legally due. It is for the Member States and their competent authorities to implement that
rule; the Commission is not empowered to rule on the question whether the recovery
procedure for the customs debt was carried out in accordance with that rule. Thus, when
it takes a decision on an application for remission of customs duties referred by a
Member State following an application submitted by the debtor to the competent customs
authorities, the Commission is obliged to examine the application in question as it is and
may not question the time periods within which the debt recovery procedure was
instituted by the customs authorities. (see paras 62, 64-65)
3. In order to determine whether or not the debtor has demonstrated obvious negligence
within the meaning of the second indent of Article 239(1) of Regulation No 2913/92
establishing the Community Customs Code, it is appropriate to apply by analogy the
criteria used in the context of Article 220 of the Customs Code to ascertain whether or
not an error committed by the customs authorities was detectable by a trader, that is,
according to the complexity of the applicable rules, and the trader's experience and
diligence. (see paras 92-93, 96, 98) _________________________________________
C-101/00 – 19/9/02 – Tulliasiamies and Antti Siilin (European Court reports 2002 Page
I-07487)

Taxation of imported used cars -First paragraph of Article 95 of the EC Treaty (now,
after amendment, first paragraph of Article 90 EC) - Sixth VAT Directive -Determination
of taxable value - Reference to the Community Customs Code

1. The first paragraph of Article 95 of the Treaty (now, after amendment, the first
paragraph of Article 90 EC) allows a Member State to apply to used vehicles imported
from another Member State a system of taxation under which the taxable value is
determined by reference to the customs value as defined by Regulation No 2913/92
establishing the Community Customs Code and Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92, but precludes the taxable
value from varying according to the marketing stage where this may result, at least in
certain cases, in the amount of the tax on an imported used car exceeding the amount of
the residual tax incorporated in the value of a similar used car already registered in the
national territory. (see para. 61, operative part 1)
2. The first paragraph of Article 95 of the Treaty (now, after amendment, the first
paragraph of Article 90 EC) precludes a Member State from applying to used cars
imported from another Member State a system of taxation under which the tax on those
vehicles

- is equal, during the first six months from the registration or bringing into use of the
vehicle, to the tax charged on a similar new vehicle, and
- is equal, from the 7th to the 150th month of use of the vehicle, to the tax on a similar
new vehicle, with a linear reduction by a percentage of 0.5% per full calendar month,
since such a system of taxation does not take the actual depreciation of the vehicle into
account and does not provide a guarantee that the amount of tax it determines will in no
case exceed the residual tax incorporated in the value of a similar used car already
registered in the national territory. (see para. 80, operative part 2)

3. Where a Member State applies to used cars imported from other Member States a
system of taxation under which the actual depreciation of the vehicles is defined in a
general and abstract way on the basis of criteria laid down by national law, the first
paragraph of Article 95 of the Treaty (now, after amendment, the first paragraph of
Article 90 EC) requires that system of taxation to be arranged in such a way, making
allowance for the reasonable approximations inherent in any system of that type, as to
exclude any discriminatory effect. That requirement presupposes, first, that the criteria
on which the flat-rate method of calculating the depreciation of vehicles is based are
made public and, second, that the owner of a used vehicle imported from another
Member State is able to challenge the application of a flat-rate method of calculation to
that vehicle, which may mean that its particular characteristics have to be examined in
order to ensure that the tax applied to it does not exceed the residual tax incorporated in
the value of a similar used vehicle already registered in the national territory. (see para.
89, operative part 3)
4. A tax such as that under Paragraph 5 of the Finnish law on car tax, described in
national law as value added tax on car tax, does not constitute value added tax within the
meaning of the Sixth Directive 77/388 on the harmonisation of the laws of the Member
States relating to turnover taxes, in the version of Directive 92/111 amending Directive
77/388 and introducing simplification measures with regard to value added tax, and is
compatible with Article 33 of that directive. (see para. 107, operative part 4)
5. The first paragraph of Article 95 of the Treaty (now, after amendment, the first
paragraph of Article 90 EC) precludes the levying of a tax such as that under Paragraph
5 of the Finnish law on car tax, which is payable on car tax, in so far as the amount
charged as such a tax on a used car imported from another Member State exceeds the
amount of the residual tax incorporated in the value of a similar used car already
registered in the national territory. (see para. 117, operative part 5)
_______________________________________________________________________
C-99/00 – 4/6/02 – Criminal proceedings against Kenny Roland Lyckeskog (European
Court reports 2002 Page I-04839)

Questions for a preliminary ruling - Obligation to refer - Court or tribunal against whose
decisions there is no judicial remedy under national law - Interpretation of Regulation
(EEC) No 918/83 - Community system of reliefs from customs duty

1. Where its decisions may be appealed to a supreme court, a national court or tribunal
is not under the obligation referred to in the third paragraph of Article 234 EC to refer a
question to the Court of Justice for a preliminary ruling even if examination of the merits
by the supreme court is subject to a prior declaration of admissibility. (see paras 16, 19,
operative part 1)
2. The question whether an importation of goods is non-commercial, within the meaning
of Article 45(2)(b) of Regulation No 918/83 setting up a Community system of reliefs
from customs duty, as amended by Regulation No 355/94, must be examined case by case
on the basis of an overall assessment of the circumstances, taking into account the nature
of the importation and the quantity of goods involved, the frequency with which the same
goods are imported by the traveller concerned, but also, where appropriate, taking into
account that traveller's lifestyle and habits or his family environment. (see para. 27,
operative part 2)
3. Article 45 of Regulation No 918/83 setting up a Community system of reliefs from
customs duty, as amended by Regulation No 355/94, precludes national administrative
instructions or practices which impose binding quantitative limits on relief from customs
duties or which would have the effect of creating an irrebuttable presumption that the
importation concerned is commercial by reason of the quantity of goods imported. (see
para. 33, operative part 3) _________________________________________________
T-49/00 – 30/1/01 – Industria pugliese olive in salamoia erbe aromatiche Snc (Iposea) v
Commission of the European Communities (European Court reports 2001 Page II-00163)

Common Customs Tariff - Regulation amending the combined nomenclature - Action for
annulment – Inadmissibility

An action for annulment brought by an undertaking which imports preserved mushrooms


of the Agaricus variety against Commission Regulation No 2626/1999, amending Annex
1 to Council Regulation No 2658/87 on the tariff and statistical nomenclature and on the
Common Customs Tariff, which provides that, to distinguish mushrooms under
subheading 2001 90 50 of the Combined Nomenclature from those under subheading
2003 10, mushrooms falling under subheading 2001 90 50 should not have a salt content
exceeding a certain limit, is inadmissible.
That regulation is to be seen as a measure of general application within the meaning of
the second paragraph of Article 249 EC. It concerns, in the interests of a uniform
application of the Common Customs Tariff, an objectively determined situation and
produces legal effects with respect to categories of persons envisaged generally and in
the abstract, in particular, importers of the products it describes. Even if the applicant
belongs to a closed class of economic operators holding contracts whose performance is
allegedly prevented by the regulation, it does not invoke any specific provision which
would have obliged the Commission to take into consideration, in the contested
regulation, the situation of those operators.
Moreover, the possibility of determining more or less precisely the number or even the
identity of the persons to whom a measure applies by no means implies that it must be
regarded as being of individual concern to them as long as it is established that such
application takes effect by virtue of an objective legal or factual situation defined by the
measure in question. The contested regulation, which applies to a situation defined
objectively, concerns the applicant only in its objective capacity as an importer of the
products referred to. The fact that a legislative measure may have specific effects which
differ according to the various persons to whom it applies is not such as to differentiate
those persons in relation to all the other operators concerned, where that measure is
applied on the basis of an objectively determined situation.
However, while it is not open to the applicant to apply for the annulment of the contested
regulation, it retains the right to plead the illegality of that measure before the national
courts, adjudicating in accordance with Article 234 EC.
(see paras 24, 27, 29, 31-33, 36)
_______________________________________________________________________
C-30/00 – 11/10/01 – William Hinton & Sons Ldª v Fazenda Pública (European Court
reports 2001 Page I-07511)

Article 104(3) of the Rules of Procedure - Post-clearance recovery of import duties


-Entry in the accounts of the import duties to be collected - Expiry of the time-limit for
taking action for recovery - Article 254 of the Act of Accession of Spain and Portugal
-Obligation incumbent on the Portuguese Republic to proceed, at its own costs, to the
elimination of certain stocks of product

1. Article 1(2)(c) and the second subparagraph of Article 2(1) of Council Regulation
(EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or
export duties which have not been required of the person liable for payment on goods
entered for a customs procedure involving the obligation to pay such duties must be
interpreted as meaning that entry in the accounts of the amount originally required of the
person liable for payment is an official act which precedes notification regarding
recovery and actual recovery and which does not necessarily consist in entry by the
customs authority in the accounts books, or any other medium used in their stead, of the
amount in question.
2. Article 2(2) of Regulation No 1697/79 must be interpreted as meaning that, where an
initial act determining the amount of levies payable is annulled and replaced by a second
act which, without altering the basis for recovery, fixes such levies in an amount lower
than that which was initially decided, the action for recovery must be considered to have
been set in motion by the initial act.
3. Neither Article 254 of the Act concerning the conditions of accession of the Kingdom
of Spain and the Portuguese Republic and the adjustments to the Treaties nor the
provisions of Commission Regulation (EEC) No 3771/85 of 20 December 1985 on stocks
of agricultural products in Portugal nor of Commission Regulation (EEC) No 579/86 of
28 February 1986 laying down detailed rules relating to stocks of products in the sugar
sector in Spain and Portugal on 1 March 1986 preclude the Portuguese Republic from
requiring of traders holding surplus stocks of sugar which they should have been able to
export within the period prescribed for that purpose to pay the levy provided for by
Article 7(1) of Regulation No 579/86.
4. The customs authorities of a Member State must refrain from carrying out
post-clearance recovery of duties pursuant to Article 5(2) of Regulation No 1697/79
where:
- the duties have not been collected on account of an error of interpretation or
application of the provisions on the levy in question in so far as it is the consequence of
acts of the competent authorities, which excludes errors caused by incorrect declarations
by the person liable,
- the person liable acting in good faith could not reasonably have detected that error,
despite his professional experience and the diligence shown by him, and
- the person liable has complied with all the provisions laid down by the rules in force as
far as concerns the declaration of the event to which the collection of the levy in question
relates. ________________________________________________________________
C-10/00 – 7/3/02 – Commission of the European Communities v Italian Republic
(European Court reports 2002 Page I-02357)

Failure by a Member State to fulfil its obligations - Community own resources - Import
from third countries of goods destined for San Marino

1. Although, by virtue of the Community customs provisions, on the one hand the territory
of the Republic of San Marino formed part of the customs territory of the Community and
the Community customs legislation, in principle, applied to movements of goods destined
for or coming from San Marino and, on the other hand, the introduction of goods into the
customs territory of the Community meant that those goods were subject to customs
control until they were assigned a customs-approved treatment in conformity with
Community law, imports from third countries of goods destined for San Marino were the
subject of a specific customs-approved treatment recognised by Community law, namely
the customs procedure under the San Marino/Italy Agreement. The introduction into the
customs territory of the Community of goods destined for San Marino and their
subjection to the customs formalities prescribed for that destination did not in themselves
give rise to a customs debt. It follows from Article 2(a) of Directive 79/623 on the
harmonisation of provisions laid down by law, regulation or administrative action
relating to customs debt and Article 2(1)(a) of Regulation No 2144/87 on customs debt
that, in order for a customs debt to arise within the meaning of those provisions, goods
liable to import duties must be placed in free circulation within the customs territory of
the Community. The specific nature of the import procedures applicable to goods
destined for San Marino, inasmuch as the customs procedure provided specifically that
those goods were not placed in free circulation following their importation into the
customs territory of the Community, precluded the application of those Community
provisions relating to the creation of a customs debt.
It follows that the introduction into the customs territory of the Community of goods
destined for San Marino and the completion of the customs formalities prescribed for that
destination did not in themselves constitute events giving rise to Communities' own
resources by way of Common Customs Tariff duties or other duties established or to be
established by the institutions. (see paras 74-80)
2. As to the burden of proof with regard to the allocation to the Communities' own
resources of duties levied on imports destined for San Marino, it should be borne in mind
that the Member States are required, under Article 5 of the Treaty (now Article 10 EC),
to facilitate the achievement of the Commission's tasks, which consist in particular,
pursuant to Article 155 of the Treaty (now Article 211 EC), in ensuring that the
provisions of the Treaty and the measures taken by the institutions pursuant thereto are
applied. The implementation of the arrangements relating to imports destined for San
Marino creates an obligation on the part of the Italian Republic to take, in sincere
cooperation with the Commission, the measures needed to ensure the application of the
Community provisions relating to establishment of possible own resources. In particular,
it follows from that obligation that where the Commission is largely dependent on the
information provided by the Member State concerned, and that it is established that the
shortcomings in the controls carried out by the Member State have created a serious risk
of loss of own resources for the Community, that Member State is required to make
supporting documents and other relevant documentation available to the Commission,
under reasonable conditions, to enable it to verify whether, and, as the case may be, to
what extent the amounts concerned relate to Communities' own resources. (see paras 87-
89, 91)
_______________________________________________________________________
C-479/99 – 7/6/01 – CBA Computer Handels- und Beteiligungs GmbH, formerly
VOBIS Microcomputer AG v Hauptzollamt Aachen (European Court reports 2001 Page
I-04391)

Common Customs Tariff - Tariff headings - Tariff classification of computer "sound


cards" - Classification in the Combined Nomenclature - Validity of Regulations (EC) Nos
1153/97 and 2086/97

Electronic circuit boards which enable automatic data-processing equipment and units
thereof to process audio signals (sound cards), and which have no specific function
within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature, are to be
classified under heading 8471 of the Combined Nomenclature, as amended by Regulation
No 1153/97 amending Annex I to Regulation No 2658/87 on the tariff and statistical
nomenclature and on the Common Customs Tariff.
(see paras 27-28 and operative part)
_______________________________________________________________________
C-371/99 – 11/7/02 – Liberexim BV v Staatssecretaris van Financiën (European Court
reports 2002 Page I-06227)

Sixth VAT Directive - Importation by removal of goods from customs arrangements


-Transport by road under the TIR arrangements or the external Community transit
arrangements - Changing of tractor - Unloading of trailer and destruction of seals
-Removal of goods from customs supervision

Article 7(3) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member
States relating to turnover taxes, as amended by Directive 92/111 amending Directive
77/388 and introducing simplification measures with regard to value added tax, provides
that, as regards goods which enter the Community under one of the specific customs
arrangements referred to in that article, the place of importation of goods, as an
operation incurring value added tax, is the Member State on whose territory the goods
cease to be covered by those arrangements.
Where goods, transported by road under the external Community transit arrangements,
are placed on the Community market after a number of irregularities or offences have
been committed successively in various Member States, in order to determine the place
and the time at which those goods cease to be covered by the arrangements within the
meaning of the abovementioned provision, where there is no applicable provision in
Regulation No 2726/90 on Community transit, reference must be made to Article 2(1) of
Regulation No 2144/87 on customs debt and, in particular, to points (c) and (d) of that
provision.
The place where the goods cease to be covered by the customs arrangement referred to in
Article 7(3) of the Sixth Directive is not only the place where the tax liability is incurred
under that directive but also the place where the customs debt is incurred. However,
where a number of irregularities of the kind which fall within the scope of Article 2(1)(c)
and (d) of Regulation No 2144/87 have been committed in various Member States, those
provisions do not specify which of those irregularities is decisive for determining the time
and place where the customs debt is incurred. In that respect, the fact that goods have
been placed under the external Community transit arrangements implies that those goods
must be placed under customs supervision from the start of operations on Community
territory until the recovery of import duties which fall due as a result of the goods
ceasing to be covered by those arrangements.
The first operation carried out in contravention of the external Community transit
arrangements does not necessarily cause the goods to cease to be covered by those
arrangements; an irregularity which constitutes a removal of the goods from customs
supervision always gives rise to a customs debt and, thus, to the goods ceasing to be
covered by the customs arrangements in question. Consequently, the goods cease to be
covered by those arrangements within the meaning of Article 7(3) of the Sixth Directive
on the territory of the Member State where the first operation which can be regarded as a
removal of the goods from customs supervision was carried out.
Any act or omission which prevents, if only for a short time, the competent customs
authority from gaining access to goods under customs supervision and from monitoring
them as provided for by the Community customs provisions must be regarded as a
removal of the goods in question from customs supervision.
Such removal of goods from customs supervision does not require intent, but, instead,
only that certain objective conditions be met.
( see paras 38, 43-45, 50-52, 57, 61, operative part, paras 1-2 )
_______________________________________________________________________
T-330/99 – 7/6/01 – Spedition Wilhelm Rotermund GmbH v Commission of the
European Communities (European Court reports 2001 Page II-01619)

Community Customs Code - Remission of import duties - Special situation - Fraud in


connection with an external Community transit operation

Article 905(1) of Commission Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code, on
the basis of which a request is made to the Commission by the national customs authority
which, presented with an application for remission of duties in respect of which it had
made an initial assessment, considers that there is evidence of the existence of a special
situation justifying the remission of duties, to make a definitive assessment on the basis of
the information placed before it as to whether a special situation exists, includes a
general equitable provision designed to cover the exceptional situation in which the
economic operator concerned might find himself in comparison with other operators
engaged in the same business.
In order to determine whether the facts in question constitute a special situation within
the meaning of that provision, the Commission must, in the context of the broad margin
of assessment it enjoys in that respect, assess all the facts and must balance, on the one
hand, the Community interest in ensuring that the customs provisions are respected and,
on the other, the interest of the economic operator acting in good faith not to suffer harm
beyond normal commercial risk.
Where the factual information constituting the fraud, which has been sent to the
Commission by the national authorities, is not questioned or supplemented, because the
Commission has not asked for additional information, and where it derives from purely
internal operations of the administration of a Member State which the applicant has no
right to monitor, and which it can not influence in any way, the Commission cannot
merely make a finding that the applicant is not in a special situation since those
circumstances go beyond the commercial risk it would normally incur.
In those circumstances, the Commission is not entitled to limit the scope of its assessment
to the possibility of active complicity by a particular customs official and to require the
applicant to supply, if necessary by producing a document from the competent national
authorities, formal and definitive proof of such complicity. By doing so the Commission
fails to appreciate both its obligation to assess all the facts itself in order to determine
whether they constitute a special situation, and the autonomous nature of the procedure
laid down in Article 905 et seq. of the implementing regulation.
( see paras 52-55, 57-58 )
_______________________________________________________________________
C-288/99 – 10/5/01 – VauDe Sport GmbH & Co. KG v Oberfinanzdirektion Koblenz
(European Court reports 2001 Page I-03683)

Common customs tariffs - Tariff headings - Classification in


the Combined Nomenclature - Child carrier

The Combined Nomenclature, set out in Annex I to Regulation No 1359/95 amending


Annexes I and II to Regulation No 2658/87 on the tariff and statistical nomenclature and
on the Common Customs Tariff, and repealing Regulation No 802/80, is to be interpreted
in such a way that a product called a child carrier, which is designed for carrying a child
in a seated position on an adult's back, consists essentially of a support frame of
aluminium tubing and a child's seat of synthetic material, is assembled by being sewn
together, is padded at the sides and at head level, and fitted out with safety belts, padded
shoulder straps and a textile waist band, and which includes a pocket for storing small
items under the seat, is to be classified under tariff heading 6307, in application of
general rule 3(b) for the interpretation of the Combined Nomenclature. The textile parts
that give such a product its essential character fall under that heading.
(see paras 28, 31 and operative part)
_______________________________________________________________________
C-253/99 – 27/9/01 – Bacardi GmbH v Hauptzollamt Bremerhaven (European Court
reports 2001 Page I-06493)

Community Customs Code and implementing regulation - Repayment of import duties


-Favourable tariff treatment - Post-clearance production of certificate of authenticity
-Alteration of the tariff classification stated in the customs declaration - Concept of
"special situation"

1. Article 236(1) of Regulation No 2913/92 establishing the Community Customs Code


does not permit the repayment of import duties where, after a complete customs
declaration has been accepted by the customs authorities and the goods covered by it
have been released into free circulation, the declarant presents a certificate of
authenticity by virtue of which the goods would, supposing the certificate to have been
produced with the goods, have been eligible for favourable tariff treatment.
If, because the certificate of authenticity has not been presented together with the goods
to which it relates, import duties are levied but it is impossible to take into consideration
any favourable tariff treatment, those duties are legally owed within the meaning of
Article 236(1) of the Customs Code and so may not in principle be repaid pursuant to
that provision.
Moreover, Article 890 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92, which is a provision implementing Article
236(1) of the Customs Code, and which provides that repayment or remission may be
allowed where a certificate of origin is produced after acceptance of the declaration of
the goods for free circulation, is not apt to be applied where the tariff treatment sought is
favourable tariff treatment within the meaning of Article 21 of the Customs Code.
Application by analogy of Article 890 to requests for repayment of import duties based on
the fact that the goods imported could have been eligible for favourable tariff treatment is
also excluded. While it is unarguable that a certificate of authenticity possesses features
similar to those of a certificate of origin, the fact nevertheless remains that the roles
played by a certificate of origin and a certificate of authenticity in the procedures for
obtaining preferential tariff treatment and favourable tariff treatment respectively are
quite different and the regime governing certificates of authenticity is much stricter than
that governing certificates of origin. Accordingly, in contrast to the situation with regard
to certificates of authenticity, the production of a certificate of origin before the goods to
which it relates are released into free circulation is not required in order to be entitled to
preferential tariff treatment and the duties levied before such a certificate is presented
cannot be regarded as being legally owed within the meaning of Article 236(1) of the
Customs Code. Having regard to the fact that the consequences connected to the moment
at which the certificates in question are presented vary considerably from one of the two
regimes to the other, Article 890 cannot be applied by analogy in such a situation. (see
paras 38-39, 46-49, 51, and operative part 1)
2. The fact that repayment or remission of duties pursuant to Article 236(1) of Regulation
No 2913/92 establishing the Community Customs Code is excluded because one of the
legal conditions laid down for that repayment or remission has not been satisfied does
not, of itself, exclude repayment or remission of those duties on the basis of Article
239(1) of that regulation, by virtue of which duties may be repaid or remitted in
situations other than those referred to in Articles 236, 237, and 238, and of Article 905(1)
of Regulation No 2454/93 laying down provisions for the implementation of Regulation
No 2913/92, provided that the legal conditions for the application of those provisions are
satisfied.
(see paras 53, 61, and operative part 2)
3. Factors which might constitute a special situation resulting from circumstances in
which no deception or obvious negligence may be attributed to the person concerned for
the purposes of Article 905(1) of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code
exist where, having regard to the objective of fairness underlying Article 239 of
Regulation No 2913/92, factors liable to place the applicant in an exceptional situation
as compared with other operators engaged in the same business are found to exist. It is
for the national court to assess, on the basis of that criterion, whether factors which
might constitute such a special situation do exist, necessitating examination of the file by
the Commission.
(see para. 61, and operative part 2)
_______________________________________________________________________
C-234/99 – 23/4/02 – Niels Nygård v Svineafgiftsfonden, and Ministeriet for Fødevarer,
Landbrug og Fiskeri (European Court reports 2002 Page I-3657)

National levy on pigs - Charge having an equivalent effect - Internal taxation - Levy
scheme authorised by the Commission as State aid compatible with the common market
-Levy incompatible with provisions of the EC Treaty other than Articles 92 of the EC
Treaty (now, after amendment, Article 87 EC) and 93 of the EC Treaty (now Article 88
EC) - Discretion of the national courts

1. A levy charged by a body established under public law according to identical criteria
on pigs produced in a Member State for slaughter on the domestic market or for live
export to other Member States, the revenue from which is allocated to activities
benefiting the two types of production, does not fall under the prohibition of charges
having equivalent effect to customs duties on exports within the meaning of Article 9 of
the Treaty (now, after amendment, Article 23 EC), Article 12 of the Treaty (now, after
amendment, Article 25 EC) and Article 16 of the Treaty (repealed by the Treaty of
Amsterdam). Such a levy may, however, be classified as discriminatory internal taxation
prohibited by Article 95 of the Treaty (now, after amendment, Article 90 EC) if and to the
extent to which the advantages deriving from the use made of its revenue compensate in
part the charge imposed on pigs produced for slaughter in the Member State concerned,
thereby placing at a disadvantage the production of pigs for live export to other Member
States. (see para. 49, operative part 1)
2. The fact that a national levy is intended to finance an aid scheme authorised by the
Commission pursuant to the Treaty provisions on State aid does not preclude a national
court from examining whether such a levy is compatible with other directly effective
Treaty provisions.
This assessment carried out by national courts makes it possible to guarantee individuals
the legal protection deriving from the direct effect of the Community law provisions and,
should those provisions be infringed, to re-establish internal legality, without thereby
encroaching on the central and exclusive role which Articles 92 (now, after amendment,
Article 87 EC) and 93 (now Article 88 EC) of the Treaty reserve to the Commission in
determining whether aid is compatible with the common market.
(see paras 62, 65, operative part 2)
_______________________________________________________________________
C-226/99 – 11/1/01 – Siples Srl, in liquidation v Ministero delle Finanze and Servizio
della Riscossione dei Tributi - Concessione Provincia di Genova - San Paolo Riscossioni
Genova SpA (European Court reports 2001 Page I-00277)

Common Customs Code - Appeals - Suspension of implementation of a decision of the


customs authorities

Article 244 of Regulation No 2913/92 establishing the Community Customs Code is to be


interpreted as meaning that it confers the power to suspend implementation of a
contested decision exclusively on the customs authorities. However, that provision does
not limit the power of the judicial authorities seised of a dispute pursuant to Article 243
of that Code to order such suspension in order to comply with their obligation to ensure
the full effectiveness of Community law.
(see para. 20 and operative part)
_______________________________________________________________________
C-213/99 – 7/12/2000 – José Teodoro de Andrade v Director da Alfândega de Leixões,
intervener: Ministério Público (European Court reports 2000 Page I-11083)

Release of goods for free circulation - Expiry of the period within which a
customs-approved use must be assigned - Procedure for putting goods up for sale or
levying an ad valorem duty

1. Article 6(3) of Regulation No 2913/92 establishing the Community Customs Code,


which obliges the customs authorities to provide reasons for decisions detrimental to the
persons to whom they are addressed, Article 53 of the regulation, which specifically
requires the customs authorities to take without delay all measures necessary to
regularise the situation of the goods in respect of which the formalities have not been
initiated within the prescribed periods, and Article 243 of the regulation, which provides
for a right of appeal against decisions taken by customs authorities, do not preclude the
automatic application, without prior notification, of a procedure, laid down by national
legislation, which provides for goods to be put up for sale where the statutory time-limits
for making a declaration for release for free circulation or an application for another
customs-approved use have expired, when the parties concerned may terminate the
procedure by paying all applicable taxes and charges, together with a certain percentage
of the value of the goods.
Use of a procedure providing either for such goods to be put up for sale or for an ad
valorem surcharge to be levied in order to regularise the situation of the goods is not in
itself contrary to the principle of proportionality. It is for the national court to determine
whether a duty amounting to 5% of the value of the goods overdue for clearance
complies with that principle. (see paras 11-13, 25, 33 and operative part 1-3)
2. An ad valorem surcharge imposed by the national customs authorities when goods are
cleared through customs following a failure to comply with the time limits for requesting
another customs-approved use for the goods have expired cannot be subject to value
added tax. Since such a duty seeks to penalise operators who have not complied with the
prescribed formalities and time-limits, it constitutes a penalty and not consideration for a
supply of goods or services for the purposes of Article 2 of the Sixth Directive 77/388 on
the harmonisation of the laws of the Member States relating to turnover taxes.
(see paras 21, 36-38 and operative part 4)
T-205/99 – 11/7/02 – Hyper Srl v Commission of the European Communities (European
Court reports 2002 Page II-03141)

Customs duties - Importation of television sets from India - Invalid certificates of origin
-Application for remission of import duties - Article 13(1) of Regulation (EEC) No
1430/79 - Rights of the defence - Special situation

1. In view of the power of assessment enjoyed by the Commission when it adopts a


decision pursuant to the general equitable provision set down in Article 13 of Regulation
No 1430/79 on the repayment or remission of import or export duties, observance of the
right to be heard must be guaranteed in procedures for the remission or repayment of
import duties. That conclusion is particularly apt where, in exercising its exclusive
authority under Article 905 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code,
the Commission proposes not to follow the opinion of the national authority as to whether
the conditions laid down by Article 13 of Regulation No 1430/79 have been met. (see
para. 49)
2. The principle of respect for the rights of the defence requires that any person who may
be adversely affected by a decision be placed in a position in which he may effectively
make his views known, at least as regards the evidence, including the documents, on
which the Commission has based its decision. However, that principle does not require
the Commission, acting on its own initiative, to grant access to all the documents which
may have some connection with the case at issue when an application for remission of
import duties is referred to it. If the party concerned considers that such documents are
relevant for establishing the existence of a special situation and/or the lack of deception
or obvious negligence on its part, then it is for the party concerned itself to request
access to those documents in accordance with the provisions adopted by the institutions
under Article 255 EC.
As regards the administrative procedure concerning remission of customs duties, it is at
the request of the party concerned that the Commission is required to provide access to
all non-confidential official documents concerning the contested decision. If no such
request is made, there is no automatic access to the documents held by the Commission.
(see paras 50, 63, 65)
3. The existence of a special situation within the meaning of Article 13(1) of Regulation
(EEC) No 1430/79 on the repayment or remission of import or export duties is
established where it is clear from the circumstances of the case that the person liable is
in an exceptional situation as compared with other operators engaged in the same
business and that, in the absence of such circumstances, that person would not have
suffered the disadvantage caused by the a posteriori entry in the accounts of customs
duties. In order to determine whether the circumstances of the case constitute a special
situation in which no deception or obvious negligence may be attributed to the person
concerned within the meaning of Article 13(1) of Regulation No 1430/79, the
Commission must assess all the relevant facts. In cases where the persons liable have
relied, in support of their applications for remission, on the existence of serious errors on
the part of the contracting parties in implementing an agreement binding the Community,
that obligation implies that the Commission must base its decision as to whether those
applications are justified on all the facts relating to the disputed imports of which it
gained knowledge in the performance of its task of supervising and monitoring the
implementation of that agreement. Moreover, the Commission cannot, in the light of its
obligation to assess all the relevant facts, and of the principle of equity which underlies
Article 13(1) of Regulation No 1430/79, disregard relevant information of which it has
gained knowledge in the performance of its tasks and which, although not forming part of
the administrative file at the stage of the national procedure, might have served to justify
remission for the parties concerned.
Moreover, although the Commission enjoys a margin of discretion in applying Article 13
of Regulation No 1430/79, it is required to exercise that power by genuinely balancing,
on the one hand, the Community interest in ensuring that the customs provisions are
respected and, on the other, the interest of the bona fide importer in not suffering harm
which goes beyond normal commercial risk. Consequently, when considering whether an
application for remission is justified, the Commission cannot take account simply of the
conduct of importers. It must also assess the impact on the resulting situation of its own
conduct, which may itself have been wrongful. (see paras 92-95)
4. The sole aim of Article 13(1) of Regulation No 1430/79 on the repayment or remission
of import or export duties is to enable importers, when certain special conditions are
satisfied and in the absence of deception or obvious negligence, to be exempted from
payment of duties due from them and not to enable them to contest the actual principle of
a customs debt being due. The application of substantive Community customs law falls
within the exclusive competence of the national customs authorities. Decisions adopted
by those authorities, including decisions requiring post-clearance payment of customs
duties not previously levied, may be challenged before the national courts under Article
243 of the Community Customs Code; those courts may make a reference to the Court of
Justice pursuant to Article 234 EC.
By contrast, since the procedure before the Commission provided for in Articles 906 to
909 of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code, is, in accordance
with Article 905 of that regulation, confined to an examination of whether the conditions
for remission laid down in Article 13(1) of Regulation No 1430/79 have been met, the
only pleas or arguments which can be properly put forward by a person liable for
customs duties who requests annulment of the decision adopted at the end of that
procedure are those which seek to show the existence of a special situation and/or the
lack of deception or obvious negligence on its part. In no circumstances may a person
liable for duties rely, in relation to the contested decision, on pleas or arguments seeking
to show that the decisions of the competent national authorities subjecting it to payment
of the duties at issue were unlawful. That situation does not adversely affect the judicial
protection afforded to Community importers. The fact that, in the context of the
procedure provided for in Article 905 et seq. of Regulation No 2454/93, it is impossible
for the person liable for duties to rely on arguments contesting the propriety of the
withdrawal of the certificates derives from the fact that the Commission is not competent
to decide on that matter. Moreover, where appropriate, there is nothing to prevent the
person liable from raising such arguments in proceedings before the competent national
court seeking review of the legality of the decision of the national customs authorities.
(see paras 98-100)
5. The fact that the customs authorities of a Member State decide to make post-clearance
recovery of customs duties following withdrawal, by the authorities of a non-member
country, of certificates of origin which proved to be invalid after subsequent verifications
by the authorities of that country, constitutes a normal commercial risk which must be
taken into consideration by any trader who is aware of the rules. It is therefore the
responsibility of traders to take steps to guard against such risks, in particular by making
the necessary arrangements in their contractual relations with their suppliers and, where
appropriate, by seeking compensation from the perpetrator of the fraud. That conclusion
is all the more compelling given that the converse interpretation, namely that the damage
suffered as a result of post-clearance recovery is capable of constituting a special
situation, within the meaning of Article 13 of Regulation No 1430/79 on the repayment or
remission of import or export duties, would jeopardise the very possibility of post-
clearance recovery of customs duties, since that type of recovery, by definition, takes
place well after the initial importation and subsequent sale of the imported goods, and
would therefore prevent all recovery of outstanding duties.
( see paras 114-115)
_______________________________________________________________________
C-201/99 – 5/4/01 – Deutsche Nichimen GmbH v Hauptzollamt Düsseldorf (European
Court reports 2001 Page I-02701)

Common Customs Tariff - Tariff headings - Classification in


the Combined Nomenclature - Satellite television receivers

The Combined Nomenclature of the Common Customs Tariff as set out in Annex I to
Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by the Annexes to Regulations Nos 2886/89, 2472/90 and
2587/91, must be interpreted as meaning that between 1990 and 1992 satellite television
receivers, which are devices designed to convert television signals previously broadcast
by satellite, received by aerials and processed by converters, so that they can be treated
in order to become visible on screen, were to be classified under tariff heading 8528
(television receivers).
(see paras 21, 25 and operative part)
_______________________________________________________________________
C-187/99 – 22/2/01 – Fazenda Pública v Fábrica de Queijo Eru Portuguesa Ldª,
intervener Ministério Público (European Court reports 2001 Page I-01429)

Inward processing relief arrangements - Regulation (EEC) No 1999/85 - Rate of yield of


the processing operation - Authorisation issued by the competent customs authority
-Power of that authority unilaterally to alter the rate of yield

Article 11 of Council Regulation No 1999/85 on inward processing relief arrangements is


to be interpreted as applying not only to the conditions or requirements for the issue of
an authorisation under the inward processing relief arrangements but also to the
conditions imposed by the authorisation on its holder for the use or functioning of those
arrangements.
Consequently, the customs authority may unilaterally alter the rate of yield fixed by it at
the time when the authorisation was issued where, while the arrangements are being
used, the rate of yield proves to be higher than the rate fixed in the authorisation. Neither
the abovementioned regulation nor the principle of legal certainty precludes such
unilateral alteration even if it is proved that the customs authority was supervising and
controlling the activities of the holder of the authorisation before it was issued.
(see paras 27, 36 and operative part 1-2)
_______________________________________________________________________
C-119/99 –17/5/01 – Hewlett Packard BV v Directeur général des douanes et droits
indirects (European Court reports 2001 Page I-03981)

Common Customs Tariff - Combined nomenclature - Classification of a multi-function


machine combining the functions of printer, photocopier, facsimile machine and
computer scanner - Principal function - Validity of Regulation (EC) No 2184/97

Point 3 of the Annex to Regulation No 2184/97 concerning the classification of certain


goods in the combined nomenclature, which classifies under subheading 8517 21 00
multi-function machines whose principal function is in fact that of a facsimile machine,
does not seek to lay down the principle that all machines combining the functions of
printer, copier, facsimile machine and scanner must be classified as facsimile machines.
(see para. 25)
_______________________________________________________________________
C-66/99 – 1/2/01 – D. Wandel GmbH v Hauptzollamt Bremen (European Court reports
2001 Page I-00873)

Community Customs Code and implementing regulation - Incurrence of a customs debt


on importation - Relevant time - Concept of removal from customs supervision of goods
liable to import duty - Production of certificates of origin – Effect

1. The application of the measures referred to in Article 68 of Regulation No 2913/92


establishing the Community Customs Code, which entitles the customs authorities, when
verifying the declarations which they have accepted, in particular to carry out an
examination of the goods (which may involve the taking of samples for analysis or
detailed examination) and the release of goods by the customs authorities as well as the
lodging and immediate acceptance of a customs declaration are among the formalities
laid down in respect of the importation of goods, which inter alia must have been
completed before non-Community goods declared for release for free circulation obtain
the status of Community goods and before there is a proper release for free circulation.
Where the goods concerned were not properly released for free circulation, the
chargeable event prescribed by Article 201(1)(a) of the Customs Code and triggering the
customs debt has not occurred and no customs debt could have been incurred under that
provision. (see paras 36-38, 42)
2. Where an examination of goods liable to customs duty has been ordered by the
customs authority for the purposes of verifying a declaration which has been accepted,
and it has proved impossible to carry out the examination because, between the time
when the customs declaration is accepted and the time when the goods may possibly be
released, the goods have been removed from the place of temporary storage without the
authorisation of the relevant customs authority, the customs debt on importation is
incurred under Article 203(1) of Regulation No 2913/92 establishing the Community
Customs Code.
Customs supervision continues after acceptance of the customs declaration and, under
Article 37(2) of the Customs Code, ends only when, inter alia, the status of non-
Community goods changes and they become Community goods, that occurrence not
being a consequence of acceptance of the customs declaration. (see paras 45, 51, and
operative part 1)
3. Any withdrawal from authorised storage of goods subject to customs supervision
without the authorisation of the customs authority constitutes removal for the purposes of
Article 203(1) of Regulation No 2913/92 establishing the Community Customs Code and
thus gives rise under that provision to a customs debt on importation.
Although removal is not defined by Community legislation, if Articles 37(1), 50, 51(1)
and 203(1) of the Customs Code are read together, it is none the less apparent that the
scope of Article 203(1) extends well beyond the acts referred to in Article 865 of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92 and that removal must be understood as encompassing any act or omission the
result of which is to prevent, if only for a short time, the competent customs authority
from gaining access to goods under customs supervision and from monitoring them as
provided for in Article 37(1) of the Customs Code.
For the purposes of Article 203(1) of the Customs Code, removal of goods from customs
supervision does not require intent: it is sufficient if certain objective conditions are met,
including, in particular, the absence of the goods from the approved place of storage at
the time when the customs authorities intend to carry out an examination of them. (see
paras 46-48, 50)
4. It is possible for a customs debt on importation to be incurred under Article 203(1) of
Regulation No 2913/92 establishing the Community Customs Code where the customs
declaration received by the customs office was accompanied by technically correct
certificates of origin corresponding to Form A and where the zero preferential tariff
applied to the goods covered by the declaration.
Article 62(2) and Article 201 of the Customs Code read in conjunction with Article
218(1)(c) of the Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 make it clear that production with the customs declaration of the
documents required in order for preferential tariff arrangements to apply in no way
affects the incurrence of the customs debt, but is simply a means of ascertaining which
tariff arrangements are applicable and the amount of the duty lawfully due.
(see paras 54, 57 and operative part 2)
_______________________________________________________________________
C-42/99 – 26/9/00 – Fábrica de Queijo Eru Portuguesa Ldª v Tribunal Técnico
Aduaneiro de Segunda Instância (European Court reports 2000 Page I-07691)

Free movement of goods - Common Customs Tariff - Tariff heading - Cheese or casein
-Regulation (EEC) No 3174/88

The Combined Nomenclature is to be interpreted as meaning that a product made by


adding rennet to skimmed milk and made up of 54% water, 0.9% fat, 5.7% phosphorous
and 2% salt and casein must be classified under tariff subheading 0406 90 11 Other
cheese: - For processing.
The explanatory notes to the Combined Nomenclature, as regards tariff subheadings
3501 10 10 to 3501 10 90, whose content is compatible with the provisions of that
nomenclature and does not alter their scope, provide that caseins are classified under
those subheadings when they contain 15% or less by weight of water. Otherwise, they are
classified under heading 0406. Since the product does not appear to fall under any other
subheading in particular and it is intended for processing, subheading 0406 90 11 Other
cheese: - For processing seems to be the most appropriate classification.
(see paras 17, 19 to 24 and operative part)
_______________________________________________________________________
C-23/99 – 26/9/2000 – Commission of the European Communities v French Republic
(European Court reports 2000 Page I-07653)

Failure by a Member State to fulfil its obligations - Free movement of goods - Procedures
for detention under customs control - Goods in transit - Industrial property right - Spare
parts for the repair of motor vehicles

A Member State which implements, pursuant to its intellectual property legislation


applicable to designs, procedures for the detention by the customs authorities of goods
lawfully manufactured in another Member State of the European Community which are
intended, following their transit through national territory, to be placed on the market in
another Member State where they may be lawfully marketed fails to fulfil its obligations
under Article 30 of the Treaty (now, after amendment, Article 28 EC). The national
legislation at issue, which authorises the national customs authorities, on an application
from the proprietor of the right in designs of spare parts for motor vehicles, to detain
spare parts presumed to be counterfeit goods for a period of 10 days during which the
applicant may refer the matter to the competent national courts, has the effect of
restricting the free movement of goods.
Intra-Community transit consists in the transportation of goods from one Member State
to another across the territory of one or more Member States and involves no use of the
appearance of the protected design, so that it does not form part of the specific subject-
matter of the right of industrial and commercial property in designs.
Since the manufacture and marketing of the product are lawful in the Member States
where those operations take place and transit does not form part of the specific subject-
matter of the design right in the Member State where transit takes place, it must be
concluded that the impediment to the free movement of goods caused by the product's
detention under customs control in the latter Member State in order to prevent its transit
is not justified on grounds of the protection of industrial and commercial property.
(see paras 22, 43, 45, 49 and operative part)
_______________________________________________________________________
C-15/99 – 19/10/2000 – Hans Sommer GmbH & Co. KG v Hauptzollamt Bremen
(European Court reports 2000 Page I-08989)

Common Customs Tariff - Customs value - Cost of analysing goods - Post-clearance


recovery of import duties - Remission of import duties

1. The costs of analyses designed to establish the conformity of imported goods with the
national legislation of the importing Member State, which the importer invoices to the
buyer in addition to the price of the goods, must be regarded as an integral part of their
transaction value within the meaning of Article 3(1) of Regulation No 1224/80 on the
valuation of goods for customs purposes inasmuch as the analyses are necessary in order
for the goods to be delivered in accordance with the provisions of the contract. The costs
pertaining to those analyses must be regarded as part of the payments made or to be
made as a condition of sale of the imported goods by the buyer to the seller ... to satisfy
an obligation of the seller within the meaning of Article 3(3)(a) of Regulation No
1224/80. (see paras 23-24, 27 and operative part 1)
2. Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties
or export duties which have not been required of the person liable for payment of goods
entered for a customs procedure involving the obligation to pay such duties, makes
waiver of post-clearance recovery by the national authorities subject to three cumulative
conditions, namely that non-collection of the duties must have been as a result of an error
made by the competent authorities themselves; the error must be such that it could not
reasonably be detected by the person liable acting in good faith; and the person liable
must have complied with all of the provisions laid down by the rules in force as far as his
customs declaration is concerned.
It follows that the customs authorities of a Member State must refrain from post-
clearance recovery of duty pursuant to that provision, if, at a previous on-the-spot
inspection of importations, they raised no objection to the non-inclusion of flat-rate
expenses in the customs value of similar transactions and it does not appear that the
trader, who had complied with all of the provisions laid down by the rules in force as far
as his customs declaration is concerned, could have been in doubt about the correctness
of the results of the inspection.
(see paras 35-37, 39-40 and operative part 2)
_______________________________________________________________________
C-1/99 – 11/1/2001 – Kofisa Italia Srl v Ministero delle Finanze, Servizio della
Riscossione dei Tributi - Concessione Provincia di Genova - San Paolo Riscossioni
Genova SpA (European Court reports 2001 Page I-00207)

Reference for a preliminary ruling - Jurisdiction of the Court - National legislation


adopting Community provisions - Community Customs Code - Appeal - Mandatory
nature of the two stages of the appeal - Suspension of implementation of a decision of the
customs authorities

1. Neither the wording of Article 177 of the Treaty (now Article 234 EC) nor the aim of
the procedure established by that article indicates that the framers of the Treaty intended
to exclude from the jurisdiction of the Court requests for a preliminary ruling on a
Community provision where the domestic law of a Member State refers to that
Community provision in order to determine the rules applicable to a situation which is
purely internal to that State.
Where, in regulating internal situations, domestic legislation adopts the same solutions
as those adopted in Community law so as to provide for one single procedure in
comparable situations, it is clearly in the Community interest that, in order to forestall
future differences of interpretation, provisions or concepts taken from Community law
should be interpreted uniformly, irrespective of the circumstances in which they are to
apply. (see paras 21, 32)
2. Article 243 of Regulation No 2913/92 establishing the Community Customs Code is to
be interpreted as meaning that it is for national law to determine whether a trader must
initially lodge an appeal against a decision of the customs authorities before the customs
authority or whether he may appeal directly to the judicial authority. Article 243 forms
part of Title VIII of the Customs Code, on appeals. Unlike a considerable number of the
substantive provisions of the Customs Code, the provisions in that title concern only a
number of essential aspects relating to the protection of the traders concerned, but do not
lay down detailed rules governing the appeals procedure. Therefore, in adopting only the
broad outlines of the appeals procedure, the Community legislature did not preclude that
national law might authorise a trader, in appropriate circumstances, to lodge an appeal
directly before an independent authority. Nor is there anything in the Community
legislation to support the conclusion that it authorises a trader to bypass an appeal
before the customs authority and appeal directly to the independent body, where under
the applicable national law an appeal to the customs authority is mandatory. (see paras
37-39, 42-43, and operative part 1)
3. Article 244 of Regulation No 2913/92 establishing the Community Customs Code is to
be interpreted as meaning that it confers the power to suspend implementation of a
contested decision exclusively on the customs authorities. However, that provision does
not limit the power of the judicial authorities seised of a dispute pursuant to Article 243
of that Code to order such suspension in order to comply with their obligation to ensure
the full effectiveness of Community law. (see para. 49, and operative part 2) _________
C-463/98 – 10/5/01 – Cabletron Systems Ltd v The Revenue Commissioners (European
Court reports 2001 Page I-03495)

Common customs tariff - Tariff headings - Tariff classification of equipment used in


local area networks - Classification in the Combined Nomenclature - Validity of
Regulations (EC) No 1638/94 and No 1165/95

1. Regulations No 1638/94 and No 1165/95 concerning the classification of certain goods


in the Combined Nomenclature are invalid inasmuch as they classify under heading No
8517 of the Combined Nomenclature (electrical apparatus for line telephony or line
telegraphy) the adapters, link adapters and transceivers described in items 1 to 3 of the
annex to Regulation No 1638/94 and the adapter cards described in item 4 of the annex
to Regulation No 1165/95.
The Commission ought to have realised, in the light of the wording of headings No 8471
and No 8517, read in conjunction with the explanatory notes, as worded when those
regulations were adopted, that it was wrong to classify those types of network equipment
under heading No 8517. That error is manifest and consequently renders those
regulations invalid. (see paras 22, 27 and operative part, paras 1-2)
2. Items of computer network equipment which are connectable to the central processing
unit either directly or through one or more other units, which are specifically designed as
part of a data-processing system, which are able to accept or deliver data in a form
which can be used by the system and which have no function that they would be capable
of performing without the assistance of an automatic data-processing machine must be
classified under heading No 8471 of the Combined Nomenclature.
(see para. 27 and operative part 3)
C-455/98 – 29/6/2000 – Tullihallitus v Kaupo Salumets and others (European Court
reports 2000 Page I-04993)

Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value


added tax - Sixth Directive - Tax on importation - Scope - Contraband importation of
ethyl alcohol

While illegal imports or supplies of goods which by their very nature or because of their
special characteristics cannot be lawfully marketed or introduced into economic
channels, such as narcotic drugs or counterfeit currency, are not subject to the taxes and
customs duties normally payable under Community legislation, the principle of fiscal
neutrality prevents any general distinction between lawful and unlawful transactions,
apart from such cases where any competition between a lawful economic sector and an
unlawful sector is precluded.
Ethyl alcohol imported as contraband from a non-member country is not a product
whose marketing is prohibited by its very nature or because of its special characteristics.
Nor may ethyl alcohol be regarded as a product which is outside economic channels,
since competition is possible between the contraband product and that traded in lawful
economic channels, in that there is a lawful market in alcohol which is precisely the
target of contraband products.
Sixth Directive 77/388, Directive 92/12 on the general arrangements for products subject
to excise duty and on the holding, movement and monitoring of such products, Directive
92/83 on the harmonisation of the structures of excise duties on alcohol and alcoholic
beverages, and Regulation No 2913/92 establishing the Community Customs Code must
therefore be interpreted as meaning that their provisions on liability to tax and tax debts
apply also to contraband importation into Community customs territory of ethyl alcohol
from non-member countries.
(see paras 19-20 and operative part)
_______________________________________________________________________
C-441/98 and C-442/98 – 21/9/2000 – Kapniki Michaïlidis AE v Idryma Koinonikon
Asfaliseon (European Court reports 2000 Page I-07145)

Charges having equivalent effect - Tobacco exports - Levy imposed for the benefit of a
social fund

1. An ad valorem charge on exported tobacco products, which is not levied either on the
same tobacco products when they are sold on the domestic market or on those imported
from another Member State, cannot escape, by reason of its social objective,
classification as a charge having equivalent effect to a customs duty on exports that is
incompatible with Articles 9 and 12 of the Treaty (now, after amendment, Articles 23 EC
and 25 EC) and Article 16 of the Treaty (repealed by the Treaty of Amsterdam), unless
the allegedly comparable charge levied on domestic products is applied at the same rate,
at the same marketing stage and on the basis of a chargeable event which is identical to
that giving rise to a charge on exports. (see para. 26 and operative part 1)
2. Although Community law does not preclude a Member State from refusing repayment
of charges levied in breach of its provisions where it is established that repayment would
entail unjust enrichment, it does preclude any presumption or rule of evidence intended
to shift to the trader concerned the burden of proving that the charges unduly paid have
not been passed on to other persons and to prevent him from adducing evidence in order
to refute any allegation that the charges have been passed on. ( see para. 42 and
operative part 2) ________________________________________________________
C-383/98 – 6/4/2000 – The Polo/Lauren Company LP v PT. Dwidua Langgeng Pratama
International Freight Forwarders (European Court reports 2000 Page I-02519)

Common commercial policy - Regulation (EC) No 3295/94 - Prohibition of the release


for free circulation, export, re-export or entry for a suspensive procedure of counterfeit
and pirated goods - Whether applicable to goods in external transit – Validity
1. Article 1 of Regulation No 3295/94 laying down measures to prohibit the release for
free circulation, export, re-export or entry for a suspensive procedure of counterfeit and
pirated goods must be interpreted as being applicable where goods of the type specified
in that regulation, imported from a non-member country, are, in the course of their
transit to another non-member country, temporarily detained in a Member State by the
customs authorities of that State on the basis of that regulation and at the request of the
company which holds rights in respect of those goods which it claims have been infringed
and whose registered office is in a non-member country.
According to Article 1(1)(a) of that regulation, the latter applies where counterfeit or
pirated goods are found when checks are made on goods placed under a suspensive
procedure within the meaning of Article 84(1)(a) of Regulation No 2913/92 establishing
the Community Customs Code. Under this latter provision, the term suspensive
procedure designates, inter alia, external transit, that is to say, a customs procedure
allowing the movement of non-Community goods from one point to another within the
customs territory of the Community without those goods being subject to import duties or
other charges under the Community Customs Code. The regulation is thus expressly
designed to apply to goods passing through Community territory from a non-member
country destined for another non-member country. It does not matter in this regard
whether the holder of the right or those entitled under him have their registered office in
a Member State or outside the Community. (see paras 26-28 and operative part 1)
2. Since the Court has ruled that measures at border crossing points intended to enforce
intellectual property rights could be adopted autonomously by the Community institutions
on the basis of Article 113 of the EC Treaty (now, after amendment, Article 133 EC), the
Community was empowered, under that article, to introduce common rules for stopping
counterfeit goods under a suspensive customs procedure such as the external transit
procedure. It was thus empowered to adopt Regulation No 3295/94 laying down
measures to prohibit the release for free circulation, export, re-export or entry for a
suspensive procedure of counterfeit and pirated goods.
The external transit of non-Community goods, moreover, is not devoid of effect on the
internal market. It is, in fact, based on a legal fiction. Goods placed under this procedure
are subject neither to the corresponding import duties nor to the other measures of
commercial policy; it is as if they had not entered Community territory. In reality, they
are imported from a non-member country and pass through one or more Member States
before being exported to another non-member country. This operation is all the more
liable to have a direct effect on the internal market as there is a risk that counterfeit
goods placed under the external transit procedure may be fraudulently brought on to the
Community market.
(see paras 32-34 and operative part 2)
_______________________________________________________________________
C-339/98 – 19/10/2000 – Peacock AG v Hauptzollamt Paderborn (European Court
reports 2000 Page I-08947)

Common customs tariff - Tariff headings - Tariff classification of network cards


-Classification in the Combined Nomenclature

Note 5(B) to Chapter 84 of the Combined Nomenclature of the Common Customs Tariff,
set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and
on the Common Customs Tariff, as amended by the annexes to Regulations Nos 2886/89,
2472/90, 2587/91, 2505/92, 2551/93 and 3115/94, which provides inter alia that heading
No 8471 (automatic data-processing machines and units thereof) does not cover
machines incorporating or working in conjunction with an automatic data-processing
machine and performing a specific function, does not preclude the classification of
network cards designed to be installed in automatic data-processing machines under that
heading. Network cards are comparable with any other medium whereby an automatic
information processing machine accepts or delivers data in the sense that they have no
function which they would be capable of performing without the assistance of such a
machine. Accordingly network cards cannot in any event be regarded as performing a
specific function.
Between July 1990 and May 1995 the cards in question were therefore to be classified
under heading No 8471 as units of machines of the type referred to, as those cards satisfy
the conditions relating to units set out in that Note, since they can be connected to the
central unit and are specifically designed as parts of an automatic data-processing
system.
(see paras 16-17, 20, 24 and operative part)
_______________________________________________________________________
C-310/98 and C-406/98 – 23/3/2000 – Hauptzollamt Neubrandenburg v Leszek Labis
(C-310/98) and Sagpol SC Transport Miedzynarodowy i Spedycja (C-406/98) (European
Court reports 2000 Page I-01797)

Free movement of goods - External transit transaction - Movement under cover of a TIR
carnet - Offences or irregularities - Evidence of the place where the offence or
irregularity was committed - Time-limit for producing evidence - Types of evidence
admissible - Compensation procedure

1. The first subparagraph of Article 454(3) of Regulation No 2454/93 laying down


provisions for the implementation of Regulation 2913/92 establishing the Community
Customs Code, which applies where international transportation of goods is effected
under a TIR carnet, must be interpreted as meaning that proof of the place where an
offence or irregularity under customs provisions was committed, which is required by the
customs authorities of the Member State where that offence or irregularity was detected,
does not have to be adduced solely by means of documentary evidence showing that the
competent authorities of another Member State have established that the offence or
irregularity was committed in that State.
Given that there is no legislation at Community level governing the concept of proof, any
type of evidence admissible under the procedural law of the Member States in similar
proceedings is in principle admissible. The wording of Article 455(3) of Regulation No
2454/93, in the version of that provision resulting from Regulation No 12/97, cannot lead
to a different conclusion. Article 455(3) relates to a different matter, namely proof of the
offence or irregularity as such. It cannot be assumed that because, as from 1997, the
Community legislature limited the types of admissible evidence for establishing the
regularity of transit operations, it intended, by implication, to do the same in relation to
the question of establishing where an offence or irregularity was committed. (see paras
29, 31, 33, operative part 1)
2. The third and fourth subparagraphs of Article 454(3) of Regulation No 2454/93 laying
down provision for the implementation of Council Regulation 2913/92 establishing the
Community Customs Code, which applies where international transportation of goods is
effected under a TIR carnet, must be interpreted as meaning that the compensation
mechanism provided for in that regulation also applies where the duties and other
charges were levied by the Member State where the offence under the customs provisions
was detected even though satisfactory proof had been furnished that the place where the
offence was actually committed was located in another Member State.
If the compensation mechanism comes into operation where a Member State has
recovered duties even though, under the rule of principle in Article 454(2) of Regulation
No 2454/93, it did not have competence to do so because the place where the offence was
committed, determined later, is not located in that State, it must also come into operation
in the situation, which is essentially no different, where the Member State which
recovered the duties did not have competence under the same rule of principle but
wrongly took the view initially that the evidence adduced to establish where the offence
was committed was insufficient.
(see para 39-40, operative part 2)
3. The first subparagraph of Article 454(3) and Article 455(1) of Regulation No 2454/93
laying down provisions for the implementation of Council Regulation 2913/92
establishing the Community Customs Code, which apply where international
transportation of goods is effected under a TIR carnet, must be interpreted as meaning
that the customs authorities of the Member State where the offence or irregularity under
the customs provisions was detected cannot impose on a TIR carnet holder a time-limit of
three months for furnishing satisfactory proof of the place where the offence or
irregularity was actually committed.
The first subparagraph of Article 454(3) of Regulation No 2454/93 unambiguously refers,
as regards the length of the period in question, to Article 455(1) of that regulation.
Article 455(1) in turn refers, as regards the time-limit it lays down, to Article 11(1) of the
Convention on the international transport of goods under cover of TIR carnets. Since the
time-limit laid down in Article 11(1) of that Convention is one year, the time-limit laid
down in the first subparagraph of Article 454(3) of Regulation No 2454/93 for furnishing
proof of the place where the offence or irregularity was committed is also one year.
(see paras 44, 49, operative part 3)
_______________________________________________________________________
C-309/98 – 28/3/2000 – Holz Geenen GmbH v Oberfinanzdirektion München (European
Court reports 2000 Page I-01975)

Common Customs Tariff - Tariff headings - Classification in the combined nomenclature


- Regulation (EC) No 1509/97 - Rectangular wood blocks used in the construction of
window frames

When, in point 2 of the Annex to Regulation No 1509/97, the Commission classified


rectangular wood blocks, 48 or 85 mm wide x 72 mm high, used in the construction of
window frames, consisting of layers of wood glued together with the grain running
parallel and with slightly rounded edges under subheading 4418 90 10 of the combined
nomenclature, it altered the subject-matter of heading 4418 of the combined
nomenclature. It therefore went beyond the powers to clarify the tariff heading conferred
on it under Article 9 of Regulation No 2658/87 on the tariff and statistical nomenclature
and on the Common Customs Tariff, with the consequence that Regulation No 1509/97 is,
to that extent, invalid.
Although certain products made of glue-laminated timber are covered by the designation
builders' ... carpentry mentioned in heading 4418 of the combined nomenclature, it
cannot however be inferred from that designation that all products made of glue-
laminated timber must be classified under that heading as builders' carpentry. In order
for such products to be classified under that heading they must have the objective
characteristics and properties defined by the wording of that heading.
(See paras 13, 27-28, 34 and operative part)
_______________________________________________________________________
C-299/98 P – 9/12/99 – CPL Imperial 2 SpA and Unifrigo Gadus Srl v Commission of
the European Communities (European Court reports 1999 Page I-08683)

Appeal (T-10/97 and T-11/97) - Recovery of post-clearance customs duties - Regulation


(EEC) No 1697/79 - Regulation (EEC) No 2454/93 - Appeal manifestly inadmissible and
manifestly unfounded

1 As is apparent from Article 168a of the EC Treaty (now Article 225 EC) and the first
paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal is to be
limited to points of law and must be based on the grounds of lack of competence of the
Court of First Instance, a breach of procedure before it which adversely affects the
interests of the appellant or an infringement of Community law by the Court of First
Instance.
An appeal may be based only on grounds relating to the infringement of rules of law, to
the exclusion of any appraisal of the facts. The Court of First Instance has exclusive
jurisdiction, first, to establish the facts except where the substantive inaccuracy of its
findings is apparent from the documents submitted to it and, second, to assess those facts.
Where the Court of First Instance has established or assessed the facts, the Court of
Justice has jurisdiction under Article 168a of the EC Treaty to review the legal
characterisation of those facts by the Court of First Instance and the legal conclusions it
has drawn from them.
2 Under Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import
duties or export duties, three cumulative conditions must be satisfied for the purposes of
waiver by the competent authorities of post-clearance recovery of import duties, namely
that non-collection must have been due to an error by the authorities, that the person
liable must have acted in good faith and that he must have complied with all the
provisions laid down by the legislation in force so far as his customs declaration is
concerned.
With regard to the first condition, this cannot be regarded as satisfied if the competent
authorities were misled, in particular as to the origin of the goods, by incorrect
declarations on the part of the exporter, the validity of which they did not have to check
or assess. Only errors attributable to acts of the competent authorities confer entitlement
to the waiver of post-clearance recovery of customs duties.
Moreover, the person liable, a bona fide importer, cannot claim that the principle of the
protection of legitimate expectations has been infringed where it is the responsibility of
traders to make the necessary arrangements in their contractual relations in order to
guard against the risks of an action for post-clearance recovery.
3 Under Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-
matter of the proceedings before the Court of First Instance may not be changed in the
appeal. Were a party to be allowed to put forward for the first time before the Court of
Justice a plea in law which it had not raised before the Court of First Instance, that
would enable it to bring before the Court, whose jurisdiction in appeals is limited, a case
of wider ambit than that which came before the Court of First Instance. In an appeal, the
jurisdiction of the Court of Justice is confined to review of the assessment made by the
Court of First Instance of the pleas argued before it.
4 Article 42(2) of the Rules of Procedure of the Court of Justice, which is applicable to
appeal proceedings by virtue of Article 118 of those Rules, provides that no new plea in
law may be introduced in the course of proceedings unless it is based on matters of law
or of fact which come to light in the course of the procedure. Therefore a plea raised for
the first time by the appellant in its reply in the proceedings before the Court of Justice,
concerning a regulation adopted and published before the date on which the appeal was
lodged, must be rejected as manifestly inadmissible.
_______________________________________________________________________
C-233/98 – 21/10/99 – Hauptzollamt Neubrandenburg v Lensing & Brockhausen
GmbH (European Court reports 1999 Page I-07349)

Community transit - Offence - Recovery of duties - Competent State

1 Article 36(3) of Regulation No 222/77 on Community transit - as amended by


Regulation No 474/90 with a view to abolishing lodgement of the transit advice note on
crossing an internal frontier of the Community, in conjunction with Article 11a(2) of
Regulation No 1062/87 on provisions for the implementation of the Community transit
procedure and for certain simplifications of that procedure, as amended by Regulation
No 1429/90 - is to be interpreted as meaning that the Member State to which the office of
departure belongs may recover import duty only if it has indicated to the principal that
he has three months in which to prove where the offence or irregularity was actually
committed and such proof has not been provided within that period.
2 The third subparagraph of Article 36(3) of Regulation No 222/77 as amended by
Regulation No 474/90 is to be interpreted as not applying to a case in which the Member
State to which the office of departure belongs has recovered duty in respect of goods
cleared for the Community transit procedure even though the principal has not been set a
time-limit for furnishing proof of the place where the offence or irregularity was actually
committed, in accordance with Article 11a(2) of Regulation No 1062/87 as amended by
Regulation No 1429/90, and in such a case the refund of the duty irregularly recovered is
not subject to the condition that the duty due from the principal have been paid in the
Member State where the offence was committed. _______________________________
C-228/98 – 3/2/2000 – Charalampos Dounias v Ypourgio Oikonomikon (European Court
reports 2000 Page I-00577)

Taxes on imported goods - Taxable value - Articles 30 and 95 of the EC Treaty (now,
after amendment, Articles 28 EC and 90 EC) - Regulation (EEC) No 1224/80

1. Article 95 of the Treaty (now, after amendment, Article 90 EC) precludes national
legislation which prescribes a method of calculating taxable value for the purposes of
turnover tax, stamp duty and a special consumption tax, where that method varies
according to whether the taxes are to be levied on domestic products or imported
products, with the result that the latter are taxed more heavily. (see para. 51, operative
part 1)
2. Article 95 of the Treaty (now, after amendment, Article 90 EC), or Articles 9 and 12
thereof (now, after amendment, Articles 23 EC and 25 EC), preclude national legislation
on the application of a tax, such as a regularising tax, under which that tax is payable on
goods from another Member State but not on equivalent goods produced in the national
territory. (see para. 51, operative part 2)
3. Regulation No 1224/80 on the valuation of goods for customs purposes, which is based
on Article 113 of the EC Treaty (now, after amendment, Article 133 EC), concerns solely
trade with non-member countries and does not therefore apply to trade between Member
States. (see para. 53, operative part 3)
4. Pursuant to the principle of cooperation laid down in Article 5 of the Treaty (now
Article 10 EC), it is for the courts and tribunals of the Member States to ensure the legal
protection which individuals derive from the direct effect of Community law. In the
absence of Community rules governing a matter, it is for the domestic legal system of
each Member State to lay down the detailed procedural rules governing actions for
safeguarding rights which individuals derive from the direct effect of Community law.
However, such rules must not be less favourable than those governing similar domestic
actions nor render virtually impossible or excessively difficult the exercise of rights
conferred by Community law. (see paras 58, 69)
5. Community law precludes national legislation which requires customs authorities to
withhold imported goods in the event of disputes concerning the amount of tax demanded,
unless the person concerned pays that amount, if that procedure is less favourable than
the procedure applicable to similar domestic actions or if, in practice, it makes it
virtually impossible or excessively difficult for the person concerned to import goods
from other Member States. (see para. 61, operative part 4)
6. The Treaty does not preclude a provision of national law under which disputes
concerning the levying of taxes on imported products are to be settled by administrative
procedure, which may have an effect on the importation of products, provided that there
is no comparable procedure applicable to disputes concerning domestic products which
is predisposed in their favour and that decisions by the administrative authorities
refusing or restricting imports are open to judicial review.
(see para. 67, operative part 5)
7. Community law does not preclude a provision of national law under which, in judicial
proceedings in which it is sought to establish State liability with a view to obtaining
compensation for damage caused by a breach of Community law, witness evidence is
admissible only in exceptional cases, provided that such a provision applies also to
similar domestic actions and that it does not prevent individuals from asserting rights
which they derive from the direct effect of Community law.
(see para. 72, operative part 6)
_______________________________________________________________________
C-223/98 – 14/10/99 – Adidas AG (European Court reports 1999 Page I-07081)

Free movement of goods - Regulation (EC) No 3295/94 - Prohibition of release for free
circulation, export, re-export or entry for a suspensive procedure of counterfeit and
pirated goods - Provision of national law requiring the names of consignees of
consignments detained by the customs authorities pursuant to the regulation to be kept
confidential - Compatibility of the provision with Regulation (EC) No 3295/94

On a proper construction, Regulation No 3295/94 laying down measures to prohibit the


release for free circulation, export, re-export or entry for a suspensive procedure of
counterfeit and pirated goods precludes a rule of national law under which the identity of
declarants or consignees of imported goods which the trade-mark owner has found to be
counterfeit may not be disclosed to him.
Effective application of the Regulation is directly dependent on the information supplied
to the holder of the intellectual property right. Thus, if the identity of the declarant and/or
consignee of the goods cannot be disclosed to him, it is in practice impossible for him to
refer the case to the competent national authority so that, in a decision based on the
merits, it can give final judgment against such practices. The reference in the second
subparagraph of Article 6(1) of the Regulation to national provisions on the protection of
personal data, commercial and industrial secrecy and professional and administrative
confidentiality cannot therefore be understood as precluding disclosure to the holder of
the right of the information which he needs in order to safeguard his interests.
_______________________________________________________________________
T-133/98 and T-134/98 – 13/2/2001 – Hewlett Packard France and Hewlett Packard
Europe BV v Commission of the European Communities (European Court reports 2001
Page II-00613)

Common Customs Tariff - Tariff headings - Tariff classification of certain hardware for
use in local area computer networks - Classification in the Combined Nomenclature

Note 5(E) to Chapter 84 of the Combined Nomenclature, contained in Annex I to


Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Regulations Nos 3009/95 and 1734/96, according to
which machines performing a specific function other than data processing and
incorporating or working in conjunction with an automatic data-processing machine are
to be classified in the headings appropriate to their respective functions or, failing that,
in residual headings, implies that the first machine is intended to perform a specific
function, and that it is able to do so, but that the fact that it is connected to an automatic
data-processing machine offers a certain advantage. However, machines which are
designed solely for automatic data-processing machines, which are directly connected to
the latter and of which the function is to supply and accept data in a form which those
machines can use cannot be regarded as performing a specific function. Such machines
are comparable with any other medium whereby an automatic data-processing machine
accepts or delivers data in the sense that they have no function which they would be
capable of performing without the assistance of such a machine. In those circumstances,
the transmission of data within a data-processing system cannot be regarded as a
specific function.
Since the products in question meet the conditions relating to units laid down in Note
5(B) to Chapter 84 of the Combined Nomenclature, they must be classified under heading
8471 as units of automatic data-processing machines.
(see paras 33, 39-41, 46)
_______________________________________________________________________
C-109/98 – 22/4/99 – CRT France International SA v Directeur régional des impôts de
Bourgogne (European Court reports 1999 Page I-02237)

Tax on the supply of CB sets - Charge having equivalent effect - Internal taxation
-Applicability of the prohibition thereof of trade with non-member countries

1 Articles 9 and 12 of the Treaty preclude a tax borne by manufacturers, importers and
persons making supplies in a Member State of radio transceivers operating on two-way
channels (`CB sets'), imported from other Member States, such as the tax governed by
Article 302 bis (X) of the French Code Général des Impôts.
Such a tax constitutes not internal taxation within the meaning of Article 95 of the Treaty
but a charge having an effect equivalent to a customs duty. It does not relate to a general
system of internal dues applied systematically to categories of products in accordance
with objective criteria irrespective of the origin of the products, since it differs from the
method of taxing other equipment using the Hertzian radio spectrum in that the tax is
levied on the supply, not the use.
2 Articles 9, 12 and 113 of the Treaty preclude a tax borne by manufacturers, importers
and persons making supplies in a Member State of radio transceivers operating on two-
way channels (`CB sets'), imported from other Member States, such as the tax governed
by Article 302 bis (X) of the French Code Général des Impôts.
Since the introduction of the Common Customs Tariff, the levying of a customs duty or
charge having equivalent effect, unilaterally introduced by a Member State in respect of
goods imported directly from non-member countries, is contrary to those provisions.
_______________________________________________________________________
C-61/98 – 7/9/99 – De Haan Beheer BV v Inspecteur der Invoerrechten en Accijnzen te
Rotterdam (European Court reports 1999 Page I-05003)

Customs duties - External transit - Fraud - Incurrence and recovery of a customs debt

Procedural rules are generally held to apply to all proceedings pending at the time when
those rules enter into force, whereas substantive rules are usually interpreted as not
applying to situations existing before their entry into force.
Community law does not impose on customs authorities who have been informed of a
possible fraud in connection with external transit arrangements any obligation to warn a
principal that he may incur liability for customs duty as a result of the fraud, even where
he has acted in good faith.
Article 11(1)(c) of Regulation No 2726/90 on Community transit provides that a principal
is, as a rule, responsible for payment of duties due `as a result of an offence or
irregularity committed in the course of or in connection with a Community transit
operation' and does not require, in order for the customs debt to arise, that the principal
be shown to be at fault or that the customs authorities be obliged in any way to inform the
principal that an investigation has been carried out and has led to the discovery of an
offence or irregularity.
Failure on the part of the customs authorities, when taking action for the post-clearance
recovery of customs duties, to observe the time-limits laid down in Articles 3, 5 and 6(1)
of Regulation No 1854/89 on the entry in the accounts and terms of payment of the
amounts of the import duties or export duties resulting from a customs debt does not
nullify the right of those authorities to proceed with such recovery, provided that it is
carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79. A
deliberate omission on the part of the customs authorities - acting in the interests of an
investigation aimed at identifying and apprehending the persons who have carried out or
are planning a fraud, or the accomplices of those persons - to inform a principal of a
possible fraud in which the principal is not implicated cannot, in any event, be classified
as an error on the part of the competent authorities within the meaning of Article 5(2) of
Regulation No 1697/79 on the post-clearance recovery of import duties or export duties
which have not been required of the person liable for payment on goods entered for a
customs procedure involving the obligation to pay such duties.
Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or
export duties, as amended by Regulation No 3069/86, makes repayment or remission
subject to two cumulative conditions, namely the existence of a special situation and the
absence of deception or obvious negligence on the part of the economic operator. In this
connection, the list, set out in Article 4 of Regulation No 3799/86, of special situations
within the meaning of Article 13(1) is not exhaustive. It is therefore for the customs
authorities to determine on a case by case basis whether a situation which is not
mentioned in that list none the less constitutes a situation which is special within the
meaning of the applicable Community legislation.
Where the customs authority has been unable to take a decision on the remission of
duties, the Member State to which the authority belongs transmits the case to the
Commission to be settled under the procedure laid down in Articles 905 to 909 of
Regulation No 2454/93. In that context, Article 905 - pursuant to which the Commission
is asked by the customs authority to determine, on the basis of the information placed
before it, whether a special situation exists such as to justify the remission of duties -
includes a general fairness clause intended to cover the exceptional situation in which a
declarant might find himself in comparison with other operators engaged in the same
business. In that connection, the demands of an investigation conducted by the national
authorities may, in the absence of any deception or negligence on the part of the person
liable, and where that person has not been informed that the investigation is being
carried out, constitute a special situation within the meaning of Article 13(1) of
Regulation No 1430/79 where the fact that the national authorities have, in the interests
of the investigation, deliberately allowed offences or irregularities to be committed, thus
causing the principal to incur a customs debt, places the principal in an exceptional
situation in comparison with other operators engaged in the same business.
_______________________________________________________________________
C-48/98 – 11/11/99 – Firma Söhl & Söhlke v Hauptzollamt Bremen (European Court
reports 1999 Page I-07877)

Community Customs Code and implementing Regulation - Exceeding of time-limits for


the customs clearance of non-Community goods in temporary storage - Failure having
"no significant effect on the correct operation of the temporary storage or customs
procedure in question" - Extension of period - "Obvious negligence"

1 Article 859 of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code contains a validly
constituted and exhaustive set of rules on failures, within the meaning of Article
204(1)(a) of Regulation No 2913/92, which `have no significant effect on the correct
operation of the temporary storage or customs procedure in question' and which, being
an exception to the rule that a customs debt is incurred through the non-fulfilment of one
of the obligations arising from the temporary storage of goods, do not give rise to a
customs debt.
The Council did not, in Article 204, reserve the right to list exhaustively the categories of
failures referred to in that provision. Secondly, by Article 249 of the Customs Code, it
conferred on the Commission the task of adopting the provisions required for
implementation of the Customs Code, with the exception of certain specific provisions
which do not include Article 204. Furthermore, since the Council has laid down in its
basic regulation the essential rules governing the matter in question, it may delegate to
the Commission general implementing power without having to specify the essential
components of the delegated power; for that purpose, a provision drafted in general
terms provides a sufficient basis for the authority to act. Moreover, the exhaustive set of
rules laid down by Article 859 of the implementing Regulation is necessary and
appropriate for the implementation of the Customs Code and it is not contrary to that
Code.
2 According to the second indent of Article 859 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code, a customs debt is not incurred through failure to fulfil obligations arising
from the temporary storage of goods, where that failure has no significant effect on the
correct operation of the temporary storage or customs procedure in question, provided
that it does not imply obvious negligence (`grobe Fahrlässigkeit' in the German version)
on the part of the person concerned. Secondly, according to the second indent of Article
239(1) of the Customs Code, and the first indent of Article 899 and Article 905(1) of the
implementing Regulation, repayment or remission of customs duties is conditional
primarily on there being no deception or obvious negligence (`offensichtliche
Fahrlässigkeit' in the German version) attributable to the person concerned.
A comparison of all the language versions of the abovementioned provisions indicates
that the terms qualifying negligence are not used consistently. It must therefore be
concluded that the legislature was not pursuing a particular objective by using different
terms in the German version. Accordingly, it must be considered that the terms which
qualify negligence in the abovementioned rules - including the term `offenkundige
Fahrlässigkeit' (manifest negligence) in Article 212a of the Customs Code - all have one
and the same meaning and must be understood as referring to obvious negligence
(`offensichtliche Fahrlässigkeit' in the German version).
It is not possible, therefore, to conclude that there was no obvious negligence within the
meaning of the second indent of Article 239(1) of the Customs Code where the customs
debt was incurred pursuant to Article 204(1)(a) of the Customs Code because of conduct
constituting obvious negligence within the meaning of the second indent of Article 859 of
the implementing Regulation.
In order to determine, specifically, whether or not there is `obvious negligence' within the
meaning of the second indent of Article 239(1) of the Customs Code, account must be
taken in particular of the complexity of the provisions non-compliance with which has
resulted in the customs debt being incurred and the professional experience of, and the
care taken by, the trader. It is for the national court to determine, on the basis of those
criteria, whether there is obvious negligence on the part of the trader.
3 Community law does not preclude a national court from determining independently
whether the criterion laid down in Article 859(1) of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code - namely that the time-limit allowed for assignment of the goods to one of
the customs-approved treatments or uses provided for under the temporary storage or
customs procedure in question ought to have been extended - is fulfilled where an
application for an extension made in time has been refused by a now unappealable
decision of the customs authority.
4 Only circumstances liable to put the applicant in an exceptional situation in relation to
other traders carrying on the same activity can justify an extension of the time-limit
allowed for assignment of the goods entered for clearance under Article 49(1) of
Regulation No 2913/92 establishing the Community Customs Code. Exceptional
circumstances which, although not unknown to the trader, are not events which would
normally confront any trader in the exercise of his occupation may constitute such
circumstances. It is for the customs authorities and the national courts to determine in
each case whether such circumstances exist.
Community law does not preclude a trader from lodging a single application for an
extension of the prescribed time-limit for assigning to goods covered by several summary
declarations a customs-approved treatment or use. However, even in the case of a single
application, the time-limit may be extended only in respect of goods in relation to which
the prescribed time-limit for assigning a customs-approved treatment or use has not yet
expired.
5 The customs authority or national court to which an application is submitted for
repayment of customs duties on the basis of Article 900(1)(o) of Regulation No 2454/93,
as amended by Article 1(29) of Regulation No 3254/94 - a provision which applies to
cases in which the goods would have been eligible for Community treatment or
preferential tariff treatment, but not to cases in which the goods would have been eligible
for other forms of favourable treatment - is required, where it is unable to grant the
repayment applied for pursuant to that provision, to examine of its own motion the merits
of that application in the light of the other provisions of Article 900 and Articles 901 to
904 of Regulation No 2454/93 listing the circumstances justifying repayment.
Where the decision-making authority is not in a position, on the basis of the grounds
adduced, to take a decision to repay or remit duties, it is required to examine of its own
motion whether there is any evidence `which might constitute a special situation resulting
from circumstances in which no deception or obvious negligence may be attributed to the
person concerned' within the meaning of Article 905(1) of Regulation No 2454/93 which
would necessitate examination of the file by the Commission.
6 Where an application is submitted for the repayment or remission of import or export
duties, the customs authority or national court cannot assume that the person concerned
has not acted with any fraudulent intent or in a manner which is obviously negligent on
the sole ground that he is in a situation referred to in Article 900(1)(o) of Regulation No
2454/93 laying down provisions for the implementation of Regulation No 2913/92
establishing the Community Customs Code, as amended by Article 1(29) of Regulation
No 3254/94.
_______________________________________________________________________
C-405/97 – 28/4/99 – Mövenpick Deutschland GmbH für das Gastgewerbe v
Hauptzollamt Bremen (European Court reports 1999 Page I-02397)

Combined nomenclature - Tariff heading 0802 - Dried walnut pieces temporarily stored
at a temperature of 24 ºC

1 The decisive criterion for the classification of goods for customs purposes is in general
to be sought in their objective characteristics and properties as defined in the wording of
the relevant heading of the Combined Nomenclature. There are also explanatory notes
drawn up, as regards the Nomenclature, by the Commission and, as regards the
Harmonised Commodity Description and Coding System, by the Customs Cooperation
Council, which are an important aid to the interpretation of the scope of the various tariff
headings but do not have legally binding force.
2 On a proper interpretation of the Combined Nomenclature, dried walnut pieces,
imported from a non-member country, which have been stored in the Community at a
temperature of -24o C and which, after thawing out, are cleared through customs to be
admitted into free circulation must be classified under tariff heading 0802 as `other nuts,
fresh or dried, whether or not shelled or peeled'.
According to the introductory notes to chapter 8 of the Nomenclature, chilled fruit and
nuts are to be classified in the same headings as the corresponding fresh fruit and nuts,
and according to the general considerations in chapter 8 of the Nomenclature of the
Customs Cooperation Council, the expression `frozen' means that the product has been
cooled to below its freezing point, whereas a `chilled' product is one whose temperature
has been reduced without the product being frozen.
However, dried walnuts do not contain water capable of being frozen; also, the treatment
applied to those goods did not lead, when the goods were warmed up by raising the
storage temperature, to any changes characteristic of freezing.
_______________________________________________________________________
C-394/97 – 15/6/99 – Criminal proceedings against Sami Heinonen (European Court
reports 1999 Page I-03599)

Goods contained in travellers' personal luggage - Travellers arriving from non-member


countries - Duty-free allowances - Prohibition on imports linked to minimum period
spent abroad

National legislation prohibiting or restricting imports of certain goods by travellers


arriving from non-member countries on grounds of public morality, public policy, public
security or protection of health and life of humans is not contrary to Regulation No
918/83 setting up a Community system of reliefs from customs duty or to Directive 69/169
concerning exemption from turnover tax and excise duty on imports in international
travel. Nor, in principle, is national legislation restricting imports of alcoholic drinks by
travellers arriving from non-member countries. Similarly, national legislation restricting
imports by travellers arriving from third countries of alcoholic drinks, on the basis of the
duration of the journey, with a view to combating disturbances of public order connected
with the consumption of alcohol, is not contrary to either of those measures.
Neither the Regulation nor the Directive, the objectives of which are respectively to
eliminate differences in the field of exemptions from customs duties and to harmonise
exemptions from turnover tax and excise duty on imports in international travel, do not
preclude the application by the Member States of import or export prohibitions or
restrictions which are justified on the grounds referred to above. As regards, in
particular, restrictions on imports on the basis of the duration of the journey, such
legislation is consistent with the principle of proportionality since it is appropriate in so
far as it introduces only a limited derogation from the Community system of customs and
tax reliefs applicable to travellers, and since it is necessary in so far as the alternatives
do not appear to be effective enough to attain the objective pursued.
_______________________________________________________________________
C-328/97 – 10/12/98 – Glob-Sped AG v Hauptzollamt Lörrach (European Court reports
1998 Page I-08357)

Combined Nomenclature - Headings Nos 3004 and 2106 - Vitamin C-based preparations

The combined nomenclature is to be interpreted as meaning that products such as Taxofit


Vitamin C + Ca Brausetabletten and Taxofit Vitamin C Kautabletten are to be classified
under heading No 3004.
Those products, the effects of which are focused, in particular, on the functions of the
immune system of the human organism, have a clearly defined therapeutic or
prophylactic profile and thus possess the essential characteristic for classification under
heading No 3004.
_______________________________________________________________________
C-290/97 – 10/12/98 – Georg Bruner v Hauptzollamt Hamburg-Jonas (European Court
reports 1998 Page I-08333)

Export refunds - Nomenclature of agricultural products

Poultry cuts made up of two hind quarters of a fowl still attached to one another by the
skin of the back constitute `quarters' (code 0207 41 11 000) within the meaning of the
nomenclature of agricultural products for export refunds established by Regulation No
3846/87.
First, because of their composition, the products in question correspond exactly to the
definition of hind quarters in accordance with the general rules for the interpretation of
the combined nomenclature, with one difference, namely that, because of the way in
which they are cut, the two quarters are not wholly separated; secondly, that fact does
not affect the product's essential characteristic - within the meaning of general rule 2(a)
for the interpretation of the combined nomenclature - of being constituted of two hind
quarters of chicken.
_______________________________________________________________________
T-290/97 – 18/1/2000 – Mehibas Dordtselaan BV v Commission of the European
Communities (European Court reports 2000 Page II-00015)

Action for annulment - Poultry imports - Article 13 of Regulation (EEC) No 1430/79


-Commission decision refusing repayment of agricultural levies - Revoked - Statement for
the file - Legality - Legitimate expectations - Legal certainty - Manifest errors of
assessment - Duty to provide reasons

1. Observance of the right to be heard is, in all proceedings initiated against a person
which are liable to culminate in a measure adversely affecting that person, a fundamental
principle of Community law which must be guaranteed even in the absence of any rules
governing the proceedings in question. In view of the margin of assessment enjoyed by
the Commission in adopting a decision pursuant to the general equitable provision
contained in Article 13 of Regulation No 1430/79 on the repayment or remission of
import or export duties, it is all the more important that respect for the right to be heard
be guaranteed in procedures initiated pursuant to that Regulation.
Consequently, a trader seeking repayment of customs duties pursuant to that provision
has the right to be heard during the procedure for the adoption of a decision on his
request.
The requirements implied by that principle are satisfied only partly by the statement for
the file mechanism introduced by Article 905 of Regulation No 2454/93, under which all
requests for repayment of import duties must be accompanied by a statement from the
person concerned that he has read the case transmitted to the Commission by the
competent national authorities and - where appropriate - that he has nothing to add.
Whilst that effectively enables the person concerned to exercise his right to be heard
during the first stage of the administrative procedure, which takes place at national level,
it in no way guarantees his rights of defence during the second stage of the procedure,
which takes place before the Commission once the national authorities have
communicated the case to it. The statement is made at a stage when the Commission has
not yet had an opportunity to consider the position of the person concerned, let alone
come to a provisional view on his application for repayment. The right to be heard must
be guaranteed at both stages. However, such a breach of the rights of the defence cannot
result in the annulment of the contested decision unless it is established that without the
irregularity the procedure might have had a different outcome. (see paras 44-47)
2. The right to rely on the principle of the protection of legitimate expectations extends to
any individual in a situation where the Community authorities have caused him to
entertain legitimate expectations. However, a person may not plead infringement of the
principle unless he has been given precise assurances by the administration. (see para.
59)
3. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid
or remitted in special situations ... which result from circumstances in which no
deception or obvious negligence may be attributed to the person concerned, constitutes a
general equitable provision designed to cover situations other than those which arise
most often in practice and for which special provision could be made when the regulation
was adopted. Article 13 is intended to apply, inter alia, where the circumstances
characterising the relationship between a trader and the administration are such that it
would be inequitable to require the trader to bear a loss which he would not normally
have incurred.
In applying that provision, the Commission enjoys a discretionary power which it must
exercise by balancing the Community interest in ensuring that customs rules are
respected against the interest of the importer acting in good faith not to incur loss beyond
the normal commercial risk.
However, a situation where the documents submitted by a customs agent, albeit in good
faith, are subsequently found to be false or incorrect does not amount to a special
situation justifying remission or repayment of customs duty. A customs agent, owing to
the very nature of his work, assumes liability for the payment of import duties and the
validity of the documents which he presents to the customs authorities, and any loss
caused by wrongful conduct on the part of his clients cannot be borne by the Community.
The possibility of receiving certificates of origin that are invalid, even though they have
been issued by the customs authorities of the countries mentioned on them, is one of the
trade risks assumed by customs agents. (see paras 76-78, 82-83)
4. The statement of reasons required by Article 190 of the EC Treaty (now Article 253
EC) must disclose clearly and unambiguously the reasoning followed by the institution
which adopted the measure, so as to enable the persons concerned to acquaint
themselves with the reasons for the measure and the Community judicature to exercise its
power of review. It is not necessary for the reasoning to go into all the relevant facts and
points of law. The question whether the statement of reasons meets those requirements
must be assessed with regard not only to its wording but also to its context and to all the
legal rules governing the matter in question.
(see para. 92)
_______________________________________________________________________
C-280/97 – 9/2/99 – ROSE Elektrotechnic GmbH & Co. KG v Oberfinanzdirektion
Köln (European Court reports 1999 Page I-00689)

Combined nomenclature - Tariff headings - Junction box without cables or contacts

The Combined Nomenclature must be interpreted as meaning that a product consisting of


a rectangular container with a lid of coated die-cast aluminium (aluminium/silicon alloy
with aluminium content predominant by weight), four steel connecting bolts and four
earthing bolts of copper-plated steel (packed loose in the product and yet to be inserted
into threaded holes provided for that purpose), which is intended to receive electrical
terminals and holes enabling electrical circuits to be connected, must be classified, in
accordance with Rule 2(a) of the General Rules for the interpretation of the Combined
Nomenclature, under subheading 8536 90 85 as an incomplete junction box.
The absence of terminals cannot mean that the product lacks the essential characteristics
of a junction box and that it cannot therefore be regarded as an incomplete junction box,
inasmuch as those terminals are fitted subsequently only because their form and
dimensions depend on the industrial use to which the box is to be put.
That interpretation is not invalidated by the Customs Cooperation Council's explanatory
notes, which provide that such products are to be classified according to their constituent
material. Those notes do not have legally binding force, so that it is necessary, where
appropriate, to examine whether their content is in accordance with the actual provisions
of the Common Customs Tariff and whether they alter the meaning of those provisions.
_______________________________________________________________________
C-259/97 – 3/12/98 – Uwe Clees v Hauptzollamt Wuppertal (European Court reports
1998 Page I-08127)

Common Customs Tariff - Collections and collectors' pieces of historical or ethnographic


interest - Old cars

Heading No 9705 of the combined nomenclature must be interpreted as meaning that


motor vehicles which are:
- in their original state, without substantial changes to the chassis, steering or braking
system, engine, etc.;
- at least 30 years old; and
- of a model or type which is no longer in production are
presumed to be of historical or ethnographic interest.
However, motor vehicles which satisfy those conditions are not of historical or
ethnographic interest where the competent authority establishes that they are not liable
to evidence a significant step in the evolution of human achievements or illustrate a
period of that evolution.
In addition, such vehicles must be collectors' pieces within the meaning of heading No
9705, that is to say, objects which are relatively rare, are not normally used for their
original purpose, are the subject of special transactions outside the normal trade in
similar utility articles and are of high value.
_______________________________________________________________________
C-247/97 – 3/12/98 – Marcel Schoonbroodt, Marc Schoonbroodt and Transports A.M.
Schoonbroodt SPRL v Belgian State (European Court reports 1998 Page I-08095)

Article 177 of the EC Treaty - Jurisdiction of the Court - National legislation reproducing
Community provisions - Relief from customs duties - Fuel on board motorised road
vehicles - Definition of 'standard tanks'

Article 112(2)(c) of Regulation No 918/83 setting up a Community system of reliefs from


customs duty, as amended by Regulation No 1315/88 which also amends Regulation No
2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff,
must be interpreted as meaning that the definition of `standard tanks' used therein does
not apply to tanks fixed to containers equipped with a refrigeration system and intended
for long-distance road haulage where those tanks have been permanently fixed by one of
the manufacturer's dealers or by a coachbuilder in order to attain certain financial
objectives.
_______________________________________________________________________
C-233/97 – 3/12/98 – KappAhl Oy (European Court reports 1998 Page I-08069)

Free movement of goods - Products in free circulation - Act of Accession of the Republic
of Austria, the Republic of Finland and the Kingdom of Sweden - Derogations - Article
99

Article 99 of the Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden is to be interpreted as not having
permitted the Republic of Finland to levy, for a period of three years from its accession to
the Community on 1 January 1995, customs duties on imports of products which had
already been released into free circulation in another Member State.

The wording of Article 99 of the Act of Accession shows that that provision constitutes a
temporary derogation from the application in full of the Common Customs Tariff in trade
between the Republic of Finland and non-member countries as regards the products
referred to in Annex XI to the Act of Accession. It does not, however, provide for any
derogation from the principle of free movement of goods between Member States,
whether in relation to products originating in the Member States or to products
assimilated thereto.
_______________________________________________________________________
T-195/97 – 16/7/98 – Kia Motors Nederland BV and Broekman Motorships BV v
Commission of the European Communities (European Court reports 1998 Page II-02907)

Commission decision declaring that repayment of import duties is not justified


-Application for annulment - Article 239 of the Customs Code - Duty to state reasons

Applications for the repayment or remission of import duties on equitable grounds, which
are submitted to the Commission pursuant to Article 239 of Regulation No 2913/92
establishing the Community Customs Code, in conjunction with Article 905 of Regulation
No 2454/93 laying down provisions for the implementation of Regulation No 2913/92,
are not concerned with whether or not the provisions of substantive customs law have
been correctly applied by the national customs authorities. Under Article 236 of the
Customs Code such a question falls within the exclusive competence of the national
authorities, whose decisions may be challenged before the national courts pursuant to
Article 243 of the Customs Code; those courts may make a reference to the Court of
Justice pursuant to Article 177 of the Treaty.
When it adopts a position on applications for repayment of import duties submitted
pursuant to the general equitable provision in Article 239 of the Customs Code, it is for
the Commission to indicate in respect of each such application whether or not special
circumstances within the meaning of that provision exist and to give reasons for its
decision on that point.
That requirement is not satisfied by a Commission decision rejecting an application
submitted on the basis of Article 239 of the Customs Code, the grounds of which give the
reasons why the Commission considers that the import duties imposed by the national
customs authority are legally payable, and the operative part of which answers the
questions whether the circumstances of the case enabled the importers to be exempted,
pursuant to the general equitable provision, from payment of the duties which were,
according to the formal legislative provisions, legally payable. Such a decision is
therefore vitiated by a failure to state reasons.
_______________________________________________________________________
T-186/97, T-187/97, T-190/97 à T-192/97, T-210/97, T-211/97, T-216/97, T-217/97,
T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 – 10/5/01 – Kaufring AG and
Others v Commission of the European Communities (European Court reports 2001 Page
II-01337)

Action for annulment - Importation of television sets from Turkey - EEC-Turkey


Association Agreement - Article 3(1) of the Additional Protocol - Compensatory levy
-Article 13(1) of Regulation (EEC) No 1430/79 - Remission of import duty not justified
-Rights of the defence

1. As it concerns an essential procedural requirement the Court of First Instance may


consider of its own motion a plea in law alleging the breach of the principle of
observance of the rights of defence. (see paras 134-135)

2. As provided by Article 116(4) of the Rules of Procedure of the Court of First Instance,
an intervener may not go beyond the form of order sought by the party in support of
whom it is intervening, but it may freely choose its pleas and arguments in support of that
form of order. (see para. 137)

3. Observance of the rights of the defence in all proceedings which are initiated against a
person and are liable to culminate in a measure adversely affecting that person is a
fundamental principle of Community law which must be guaranteed even in the absence
of any rules governing the procedure in question. That principle requires that any person
who may be adversely affected by a decision be placed in a position in which he may
effectively make his views known, at least as regards the evidence on which the
Commission has based the contested decision. In view of the power of assessment enjoyed
by the Commission when it adopts a decision pursuant to the general equitable provision
contained in Article 13 of Regulation No 1430/79 relating to the remission or repayment
of import or export duties, it is all the more important that observance of the right to be
heard be guaranteed in procedures initiated pursuant to that regulation. That conclusion
is particularly apt where, in exercising its exclusive authority under Article 905 of
Regulation No 2454/93, the Commission proposes not to follow the opinion of the
national authority as to whether the conditions laid down by Article 13 of Regulation No
1430/79 have been met, in particular as to whether any obvious negligence can be
attributed to the person concerned. (see paras 151-153, 155)

4. Observance of the rights of the defence is a fundamental principle of Community law


which requires not only that the person concerned be placed in a position in which he
may effectively make known his views on the relevant circumstances, but also that he
should at least be able to put his own case on the documents taken into account by the
Community institution.
Observance of the rights of the defence requires that a person seeking remission of
import duty must have had the opportunity to state his views on the documents on which
the Commission based the contested decision.
It is not for the Commission to determine the relevance or interest which certain
documents might have for a party's defence. It is possible that documents considered
irrelevant by the Commission may be of interest to the applicant. If the Commission could
unilaterally exclude from the administrative procedure documents which might be
detrimental to it, that might constitute a serious breach of the rights of defence of a
person seeking remission of import duties. (see paras 179, 185)

5. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or


export duties makes that repayment or remission subject to two cumulative conditions,
namely the existence of a special situation and the absence of obvious negligence or
deception on the part of the person concerned.
The existence of a special situation is established where it is clear from the circumstances
of the case that the person liable is in an exceptional situation as compared with other
operators engaged in the same business and that, in the absence of such circumstances,
he would not have suffered the disadvantage caused by the entry in the accounts a
posteriori of customs duties.
As regards the condition concerning the absence of obvious negligence or deception on
the part of the interested party, it must be made clear that the question whether the error
was detectable, within the meaning of Article 5(2) of Regulation No 1697/79, is linked to
the existence of obvious negligence or deception within the meaning of Article 13(1) of
Regulation No 1430/79, and therefore the conditions laid down by the latter provision
must be assessed in the light of those laid down in Article 5(2) of Regulation No 1697/79.
(see paras 217-220)

6. Article 13(1) of Regulation No 1430/79, which provides that import duties may be
repaid or remitted in situations which result from circumstances in which no deception or
obvious negligence may be attributed to the person concerned constitutes a general
equitable provision.
In order to determine whether the circumstances of the case constitute a special situation
within the meaning of that provision the Commission must assess all the relevant facts.
That obligation implies that, in cases in which reliance is placed, in support of
applications for remission, on the existence of serious deficiencies on the part of the
contracting parties in implementing an agreement binding the Community, the
Commission must base its decision as to whether those applications are justified on all
the facts relating to the disputed imports of which it gained knowledge in the
performance of its task of supervising and monitoring the implementation of that
agreement. Similarly, it cannot disregard relevant information of which it has gained
knowledge in the performance of its tasks and which, although not forming part of the
administrative file at the stage of the national procedure, might have served to justify
remission for the interested parties.
Moreover, although the Commission enjoys a discretionary power in applying Article 13,
it is required to exercise that power by genuinely balancing, on the one hand, the
Community interest in ensuring that the customs provisions are respected and, on the
other, the interest of the importer acting in good faith in not suffering harm which goes
beyond normal commercial risks. Consequently, when considering whether an
application for remission is justified, it cannot take account only of the conduct of
importers. It must also assess the impact on the resulting situation of its own conduct,
which may itself have been wrongful. (see paras 216, 222-225)

7. Article 5(2) of Regulation No 1697/79 provides that the competent authorities may
refrain from taking action for the post-clearance recovery of import duties or export
duties which were not collected as a result of an error made by the competent authorities
themselves which could not reasonably have been detected by the person liable, the latter
having for his part acted in good faith and observed all the provisions laid down by the
rules in force as far as his customs declaration is concerned. Thus, the legitimate
expectations of the person liable to pay qualify for the protection provided for by that
provision only if it was the competent authorities themselves which created the basis for
the expectations of the person liable. That condition cannot be regarded as fulfilled
where the competent authorities have been misled, in particular as to the origin of the
goods, by incorrect declarations made by the person liable, the validity of which those
authorities do not have to check or assess. In such circumstances, it is the person liable
to pay who must bear the risks arising from a commercial document which is found to be
false when subsequently checked.
Although Article 5(2) of the above Regulation and Article 13(1) of Regulation No
1430/79, which provides that the competent authorities may repay or remit import duties
in situations which result from circumstances in which no deception or obvious
negligence may be attributed to the person concerned, pursue the same aim the
provisions are not the same. The first has a more limited objective than the second, in so
far as it is intended solely to protect the legitimate expectation of the person liable to pay
that all the elements on which the decision whether or not to proceed with the recovery of
customs duties is based are correct while the second is a general equitable provision.
Thus, where the competent authorities did not enter the customs duties in the accounts
because they were misled by statements made by exporters, the person liable cannot rely
on Article 5(2) of Regulation No 1697/79. Similarly, as is clear from Article 4(2)(c) of
Regulation No 3799/86 and Article 904(c) of Regulation No 2454/93, the person liable
cannot argue that the presentation of invalid certificates and the consequent error of the
competent authorities are sufficient to constitute a special situation within the meaning of
Article 13 of Regulation No 1430/79. On the other hand, those provisions do not prevent
the person liable to pay from relying on other matters in support of his application for
remission under Article 13 of Regulation No 1430/79. For example, the error of the
competent authorities may itself have been made possible by inadequate monitoring by
the Commission of the implementation of the provisions of an association agreement and
such circumstances may constitute a special situation. (see paras 231-235)

8. Under Article 7 of the Agreement establishing an Association between the EEC and
Turkey the contracting parties are to take all appropriate measures, whether general or
particular, to ensure the fulfilment of the obligations arising from the agreement and to
refrain from any measures liable to jeopardise the attainment of its objectives. That
provision expresses the pacta sunt servanda principle and the principle of good faith
which must govern the conduct of the parties to an agreement in public international law.
(see para. 237)

9. Pursuant to Article 155 of the EC Treaty (now Article 211 EC) and the principle of
good administration, the Commission has a duty to ensure the proper application of the
Agreement establishing an Association between the EEC and Turkey and of the
Additional Protocol.
(see para. 257)

10. As envisaged by the Agreement establishing an Association between the EEC and
Turkey, it is for the Commission, in cases of doubt about the validity of A.TR.1 movement
of goods certificates issued by the Turkish customs authorities to make use of the
procedure for settling disputes laid down in Article 25 of that agreement before declaring
those certificates invalid. That conclusion is borne out by the fact that the agreement
does not provide for the possibility of a contracting party declaring invalid the
certificates issued by the customs authorities of the other contracting party. Furthermore,
such a manner of proceeding seems difficult to reconcile with the division of
responsibility between the customs authorities of the parties to the agreement and the
principle that the customs administration of the importing State accepts the
determinations legally made by the authorities of the exporting State. (see para. 270)

11. The existence of tensions between the Community and a third country does not
exonerate the Commission as guardian of the Treaty and of the agreements concluded
under it from ensuring the correct implementation by that country of the obligations it
has contracted to fulfil under an agreement concluded with the Community, using the
means provided for by the agreement or by the decisions taken pursuant thereto. If, as a
result of such tensions, it is unable to meet that obligation, inter alia because the means
at its disposal prove to be inoperative or ineffective, it is incumbent upon it, at the very
least, to inform the Member States as soon as possible of the measures to be taken to
prevent damage to the Community and Community traders. In no case can the
Commission use its exclusive authority as regards the recovery and remission of import
duties to remedy failures in the implementation of an agreement concluded between the
Community and a third country. (see paras 271-272)

12. In order to determine whether an error made by the competent authorities could not
reasonably have been detected by the person liable within the meaning of Article 5(2) of
Regulation No 1697/79 on the post-clearance recovery of import duties or export duties
which have not been required of the person liable for payment on goods entered for a
customs procedure involving the obligation to pay such duties, account has to be taken
inter alia of the precise nature of the error, the professional experience of and the care
taken by the trader concerned. That assessment must be made in the light of the
particular circumstances of the case. The nature of the error should be assessed inter
alia in the light of the amount of time during which the competent authorities persisted in
their error and the complexity of the provisions at issue. (see paras 279, 282)

13. Article 13 of Regulation No 1430/79 provides that import duties may be repaid or
remitted in situations which result from circumstances in which no deception or obvious
negligence may be attributed to the person concerned. It is for the Commission to prove
obvious negligence in a situation where it is clear that the manner in which the
applicants entered into purchase contracts and carried out the imports at issue is in
conformity with standard trade practice.
(see para. 297)
_______________________________________________________________________
C-181/97 – 28/1/99 – A.J. van der Kooy v Staatssecretaris van Financiën (European
Court reports 1999 Page I-00483)

Part Four of the EC Treaty - Article 227 of the EC Treaty - Article 7(1)(a) of Sixth
Directive 77/388/EEC - Goods in free circulation in overseas countries and territories

It follows from the provisions of Articles 3 and 7, read together, of the Sixth Directive
(77/388) on the harmonisation of the laws of the Member States relating to turnover taxes
that the terms `Community' and `territory of the Community' relate to the area of
application of the Treaty as defined for each Member State in Article 227 of the Treaty.
In accordance with Article 227(3), the special arrangements for association set out in
Part Four of the Treaty apply to the overseas countries and territories (OCTs), including
the Netherlands Antilles. Under those arrangements, failing express reference, the
general provisions of the Treaty do not apply to the OCTs. Consequently, the entry into a
Member State of goods coming from the Netherlands Antilles cannot be categorised as an
intra-Community transaction for the purposes of the Sixth Directive, unless a special
provision so prescribes. There is no provision to that effect in the Sixth Directive or in
Part Four of the Treaty or in Decision 91/482 on the association of the overseas
countries and territories with the European Economic Community. The entry into a
Member State of goods coming from the Netherlands Antilles must therefore be regarded
as entry into the Community for the purposes of applying Article 7(1) of the Sixth
Directive.
_______________________________________________________________________
C-86/97 – 25/2/99 – Reiner Woltmann v Hauptzollamt Potsdam (European Court
reports 1999 Page I-01041)

Theft of goods - Customs duties - Remission - Special situation

Factors `which might constitute a special situation resulting from circumstances in which
no deception or obvious negligence may be attributed to the person concerned', within
the meaning of Article 905(1) of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code
exist, necessitating examination of the file by the Commission, where, having regard to
the objective of fairness underlying Article 239 of Regulation No 2913/92, factors liable
to place the applicant in an exceptional situation as compared with other operators
engaged in the same business are found to exist and the conditions laid down in Article
900(1)(a) of Regulation No 2454/93, for remission of customs duties in favour of an
applicant, are not fulfilled.
_______________________________________________________________________
T-10/97 and T-11/97 – 9/6/98 – Unifrigo Gadus Srl and CPL Imperial 2 SpA v
Commission of the European Communities (European Court reports 1998 Page II-02231)
(see Judgment in Appeal C-299/98 P)

Post-clearance recovery of customs duties - Regulation (EEC) No 1697/79 - Regulation


(EEC) No 2454/93

Procedural rules are generally held to apply to all proceedings pending at the time when
they enter into force, whereas substantive rules are usually interpreted as not applying to
situations existing before their entry into force.

Articles 871 and 873 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code
confer on the Commission a decision-making power, in particular where the competent
authorities consider that the criteria for waiving post-clearance recovery of customs
duties are fulfilled. That decision-making power is designed to ensure the uniform
application of Community law. The machinery for referring cases to the Commission
would be rendered pointless if the Commission were required to adhere to the views
expressed by the customs authorities in the request submitted to it by them. None the less,
that decision-making power in no way permits the Commission to disregard the right of
the person liable to waiver of the post-clearance recovery of customs duties where,
having completed its examination of the matter, it concludes that the criteria entitling the
undertaking to the benefit of that waiver of recovery are fulfilled.

Where a subsequent verification of imports effected under preferential tariff


arrangements does not confirm the origin of the goods as stated in the EUR.1 certificate,
it must be concluded that the goods are of unknown origin and that the EUR.1 certificate
and the preferential tariff were thus wrongly granted.

Consequently, where the Commission is called upon to determine whether the customs
authorities of a Member State are required to carry out post-clearance recovery of
import duties, it is entitled to conclude that the file submitted to it is complete and that
there is no need for it to seek additional information before making its decision if the
authorities of the exporting State have informed the authorities of the importing State that
the exporter is unable to prove that the goods in question originated from the territory of
the exporting State and neither the authorities of the importing State nor the importers
have contested the conclusion that those goods are of unknown origin.

In accordance with the very wording of Article 5(2) of Regulation No 1697/79 on the
post-clearance recovery of import duties or export duties, the legitimate expectations of
the person liable warrant the protection provided for in that article only if it was the
competent authorities `themselves' which created the basis for those expectations. Thus,
only errors attributable to acts of the competent authorities confer entitlement to the
waiver of post-clearance recovery of customs duties. That condition cannot be regarded
as fulfilled where the competent authorities have been misled - in particular as to the
origin of the goods - by incorrect declarations on the part of the exporter whose validity
they do not have to check or assess. Moreover, the person liable cannot entertain a
legitimate expectation with regard to the validity of EUR.1 certificates by virtue of the
fact that they were initially accepted by the customs authorities of a Member State, since
the role of those authorities in regard to the initial acceptance of declarations in no way
prevents subsequent checks from being carried out.
_______________________________________________________________________
C-413/96 – 24/9/98 – Skatteministeriet v Sportgoods A/S (European Court reports 1998
Page I-05285)

Customs duty - Constitution of a customs debt - Post-clearance recovery of import duties


- Remission of import duties

Article 2(1) of Regulation No 1697/79 on the post-clearance recovery of import duties or


export duties which have not been required of the person liable for payment on goods
entered for a customs procedure involving the obligation to pay such duties must be
construed as meaning that, where a post-clearance inspection has revealed an error in
the tariff classification of goods indicated in a declaration for release into free
circulation, and where the levying of customs duties on products covered by the heading
under which those goods ought to have been classified was suspended at the date on
which that declaration was accepted but had been re-established when the error was
detected, the customs authorities must not take account of that suspension in order to
recalculate the amount of the customs duties legally due on the date on which the
declaration was accepted.
Since, at the date on which the declaration for release into free circulation was accepted,
tariff suspension was granted only within the framework of tariff ceilings, the overall
scheme of such a system requires the strictest possible adherence to the ceilings
established. If it were to be accepted that ceilings may be exceeded retroactively where
goods are reclassified following the discovery of an error by the importer in the tariff
classification of goods, that would have to be accepted irrespective of the quantity and
value of the goods in question. Such an interpretation would negate the effectiveness of
both the regulation establishing the tariff ceilings and that re-establishing the levying of
customs duties. Furthermore, the fact that a request could be made for the ceilings to be
exceeded retroactively could give rise to abuse.
When the Commission, after consultation with the Customs Code Committee, has
delivered a decision addressed to a Member State holding that there was, in a specific
case, no justification for granting remission of import duties pursuant to the provisions of
Regulation No 1430/79 on the repayment or remission of import or export duties, and
when that decision does not contain any legal or factual indication relating to the legal
basis for effecting post-clearance recovery of the import duties concerned under
Regulation No 1697/79 on the post-clearance recovery of import duties or export duties
which have not been required of the person liable for payment on goods entered for a
customs procedure involving the obligation to pay such duties, a national court may rule
on the latter question, having recourse, if appropriate, to the procedure under Article 177
of the Treaty.
_______________________________________________________________________
C-370/96 – 26/11/998 – Covita AVE v Elliniko Dimosio (European Court reports 1998
Page I-07711)

Regulation (EEC) No 1591/92 - Countervailing charge on cherries originating in Bulgaria


- Entry in the accounts - Post-clearance recovery

The countervailing charge introduced by Regulation No 1591/92 introducing a


countervailing charge on cherries originating in Bulgaria does not apply only to dessert
cherries which are consumed fresh but also to cherries intended for industrial
processing.
A trader who has accumulated some experience of import and export transactions and
who is aware, in particular, of the imminent risk of a countervailing charge being
introduced cannot, if that charge is actually introduced, benefit from the provisions of
Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or
export duties which have not been required of the person liable for payment on goods
entered for a customs procedure involving the obligation to pay such duties or from
Article 13 of Regulation No 1430/79 on the repayment or remission of import or export
duties since he could have informed himself as to the actual introduction of the charge by
consulting the Official Journal of the European Communities and failed to do so.
Article 5(2) of Regulation No 1697/79, which makes any waiver of post-clearance
recovery by the authorities subject to the condition that the error made by the competent
authorities should be such that it could not reasonably be detected by the person liable
acting in good faith, despite his professional experience and the diligence expected of
him, is to be interpreted as meaning that, where a professional trader importing goods is
aware of the imminent possibility that a countervailing charge might be introduced for
certain goods, he must ascertain, by consulting the relevant issues of the Official Journal,
the provisions of Community law applicable to the transactions he is carrying out. To
impose such an obligation on traders to inform themselves does not constitute a
requirement that is disproportionate to the objective pursued by the introduction of a
countervailing charge, which is to obviate disturbances on the Community market,
bearing in mind, moreover, the need to apply Community law uniformly.
Furthermore, a trader who is aware of the imminent possibility that a countervailing
charge might be introduced and who has not ascertained, by consulting the relevant
issues of the Official Journal, the provisions of Community law applicable to the
transactions which he carries out is obviously negligent within the meaning of Article 13
of Regulation No 1430/79 and does not therefore fulfil one of the conditions to which that
provision makes repayment or remission of import duties subject.
Failure on the part of the customs authorities, when taking action for the post-clearance
recovery of the countervailing charge, to observe the time-limits laid down in Articles 3
and 5 of Regulation No 1854/89 on the entry in the accounts and terms of payment of the
amounts of the import duties or export duties resulting from a customs debt does not
nullify the right of those authorities to proceed with such recovery, provided that it is
carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79.
_______________________________________________________________________
C-325/96 – 16/12/97 – Fábrica de Queijo Eru Portuguesa Ldª v Subdirector-Geral das
Alfândegas, and Ministério Público (European Court reports 1997 Page I-07249)

Inward processing relief arrangements - Special arrangements for milk sector products
-Extension of the time-limit for export

Article 28 of Council Regulation (EEC) No 3677/86 of 24 November 1986 laying down


provisions for the implementation of Regulation (EEC) No 1999/85 on inward processing
relief arrangements, as amended by Commission Regulation (EEC) No 2281/88 of 25
July 1988, must be interpreted as meaning that the time-limits for re-export laid down
therein may not be extended.
_______________________________________________________________________
C-315/96 – 29/1/98 – Lopex Export GmbH v Hauptzollamt Hamburg-Jonas (European
Court reports 1998 Page I-00317)

Customs duty - Classification of goods - Regulation amending classification - Binding


tariff information issued previously – Validity

The aim of binding tariff information is to enable the trader to proceed with certainty
where there are doubts as to the classification of goods in the existing customs
nomenclature, thereby protecting him against any subsequent change in the position
adopted by the customs authorities with regard to the classification of the goods.
However, as is confirmed clearly and precisely by the wording of the first indent of the
first paragraph of Article 13 of Regulation No 1715/90 on the information provided by
the customs authorities of the Member States concerning the classification of goods in the
customs nomenclature, such information is not aimed at, nor can it have the effect of,
guaranteeing that the tariff heading to which the trader refers will not subsequently be
amended by a measure adopted by the Community legislature.
Accordingly, in so far as that article provides that binding tariff information ceases to be
valid where, as a result of the adoption of a regulation amending the customs
nomenclature, it no longer conforms to Community law as thus established, not only is it
in keeping with the requirements inherent in the principle of legal certainty, but it also
precludes the trader from being able to entertain, on the sole basis of binding tariff
information, a legitimate expectation that the tariff heading in question will not be
amended by a measure adopted by the Community legislature.
Moreover, that provision does not prevent the principles of the protection of legitimate
expectations and legal certainty from imposing on the Community legislature, when the
customs nomenclature is amended, the obligation to protect by means of appropriate
measures traders who would otherwise sustain unforeseeable and irreparable damage,
whether or not they are the addressees of binding tariff information.
_______________________________________________________________________
C-292/96 – 15/1/98 – Göritz Intransco International GmbH v Hauptzollamt Düsseldorf
(European Court reports 1998 Page I-00165)

Community Customs Code - Community transit procedure - Simplified procedures


-Authorised consignor status - Conditions for granting

Under Article 76(4) of Regulation No 2913/92 establishing the Community Customs


Code, customs authorities may grant the status of authorised consignor only on the basis
of Articles 398 to 405 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92.
Article 398 of Regulation No 2454/93 allows customs authorities to grant the status of
authorised consignor even when it is no longer possible to exempt such consignor from
the obligation to present the goods at the office of departure because they have already
been presented to customs.
_______________________________________________________________________
C-270/96 – 12/3/98 – Laboratoires Sarget SA v Fonds d'intervention et de
régularisation du marché du sucre (European Court reports 1998 Page I-01121)

Refund for use of sugar in the manufacture of certain chemical products - Anti-asthenia
products - Tariff classification

A product presented in the form of chewable tablets, effervescent tablets, and a drinkable
solution in ampoules, their active ingredients being in principle identical, a drinkable 5
ml ampoule containing 1 g of arginine-aspartate as the single active ingredient,
excipients and sodium, and a product presented in the form of a powder to make a
drinkable solution, contained in sachets, and a drinkable solution in the form of
ampoules, containing 3 g of arginine-glutamate (the active ingredient of the product, with
the same therapeutic effects as arginine-aspartate), the second product having
practically the same composition as the first product and identical therapeutic
indications, cannot be classified under heading 3004 of the Combined Nomenclature, and
consequently do not come within the scope of Regulation No 1010/86 laying down
general rules for the production refund on certain sugar products used in the chemical
industry, when it has not been established that the products had clearly defined
therapeutic or prophylactic characteristics with an effect concentrated on precise
functions of the human organism or that they were capable of being applied in the
prevention or treatment of specific diseases or ailments.
Nor, for identical reasons, can a product marketed in a drinkable solution put up in 5 or
10 ml ampoules, one 5 ml ampoule containing 15 ìg of vitamin B 12 and a 10 ml ampoule
double that quantity and in addition amino acids and preservatives, or a product
presented in the form of drinkable ampoules for adults of 5 or 10 ml, its composition
including 500 ìg of vitamin B 12 per ampoule of 10 ml and 250 ìg of vitamin B 12 per
ampoule of 5 ml and also containing amino acids and preservatives, be classified under
heading 3004 and consequently those products do not come within the scope of
Regulation No 1010/86.
Neither the fact that, pursuant to the provisions of Directive 65/65 on medicinal products,
marketing authorisations were granted for those products as `medicinal products' by the
competent national authorities, nor the fact that those products are regarded as such
under that State's legislation, nor the presentation of the products is a deciding factor in
so far as the classification of such products is concerned.
_______________________________________________________________________
C-261/96 – 6/11/97 – Conserchimica Srl v Amministrazione delle Finanze dello Stato
(European Court reports 1997 Page I-06177)

Customs duty - Post-clearance recovery of import duties - Limitation period

The second subparagraph of Article 2(1) of Regulation No 1697/79 on the post-clearance


recovery of import duties or export duties which have not been required of the person
liable for payment on goods entered for a customs procedure involving the obligation to
pay such duties does not apply to duties not collected in respect of goods entered for a
customs procedure where the obligation to pay those duties was incurred on a date prior
to the entry into force of that regulation.
_______________________________________________________________________
C-237/96 – 25/9/97 – Criminal proceedings against Eddy Amelynck and others
(European Court reports 1997 Page I-05103)

Free movement of goods - Community transit -Means of proof of the Community status
of goods

The rule laid down in Regulation No 222/77 on Community transit and Regulation No
223/77 on provisions for the implementation of the Community transit procedure and for
certain simplifications of that procedure to the effect that, save as otherwise provided,
proof of the Community status of goods may be provided only by means of transit
documents T2 or T2 L is consistent with Articles 9 and 10 of the Treaty.
In the first place, Articles 9 and 10 are silent as to the means of proof and the burden of
proof of the Community status of goods and leave it to secondary Community legislation
to settle those matters, while, second, the provision of a standard and simple means of
proof, combined with the possibility of producing such proof even after the frontier has
been crossed, is justified by the need to facilitate the movement of goods within the
Community, which is one of the basic principles of the common market.
Article 37(2) of Regulation No 222/77 does not allow proof of the Community status of
goods to be provided by means of the findings of the competent authorities of a Member
State made when inspections are carried out under the Community transit procedure.
That provision cannot constitute a derogation from the rule that, save as otherwise
provided, proof of the Community status of goods may be provided only by means of
transit documents T2 or T2 L. Admission of the findings referred to in Article 37(2) as
proof would lead to reintroduction of the simultaneous application of national
administrative procedures which the rules governing Community transit are designed
precisely to avoid.
_______________________________________________________________________
C-228/96 – 17/11/98 – Aprile Srl, in liquidation, v Amministrazione delle Finanze dello
Stato (European Court reports 1998 Page I-07141)

Charges having equivalent effect - Recovery of sums paid but not due - Procedural time-
limits under national law

In the absence of Community rules on the refunding of national charges levied though not
due, it is for the domestic legal system of each Member State to designate the courts and
tribunals having jurisdiction and to lay down the detailed procedural rules governing
actions for safeguarding rights which individuals derive from Community law, provided,
first, that such rules are not less favourable than those governing similar domestic
actions (principle of equivalence) and, second, that they do not render virtually
impossible or excessively difficult the exercise of rights conferred by Community law
(principle of effectiveness).

As regards the principle of effectiveness, it is compatible with Community law to lay


down reasonable time-limits for bringing proceedings in the interests of legal certainty
which protects both the taxpayer and the administration concerned. Such time-limits are
not liable to render virtually impossible or excessively difficult the exercise of rights
conferred by Community law. In that regard, a time-limit of three years under national
law, reckoned from the date of the contested payment, appears reasonable.

Observance of the principle of equivalence implies, for its part, that the procedural rule
at issue applies without distinction to actions alleging infringements of Community law
and to those alleging infringements of national law, with respect to the same kind of
charges or dues. That principle cannot, however, be interpreted as obliging a Member
State to extend its most favourable rules governing recovery under national law to all
actions for repayment of charges or dues levied in breach of Community law. Thus,
Community law does not preclude the legislation of a Member State from laying down,
alongside a limitation period applicable under the ordinary law to actions between
private individuals for the recovery of sums paid but not due, special detailed rules,
which are less favourable, governing claims and legal proceedings to challenge the
imposition of charges and other levies. The position would be different only if those
detailed rules applied solely to actions based on Community law for the repayment of
such charges or levies.

It follows that Community law does not preclude the application of a national provision
which, for all actions for repayment of customs charges, imposes a special time-limit of
five, and subsequently three, years, instead of the ordinary limitation period of 10 years
for actions for the recovery of sums paid but not due, provided that that time-limit, which
is similar to that imposed for certain taxes, applies in the same way to actions based on
Community law for repayment of such charges as to those based on national law.

Community law does not prohibit a Member State from resisting actions for repayment of
charges levied in breach of Community law by relying on a time-limit under national law
even if that Member State has not yet amended its national rules in order to render them
compatible with those provisions, provided, first, that that time-limit is not less
favourable for actions based on Community law than for those based on domestic law
and that it does not render virtually impossible or excessively difficult the exercise of
rights conferred by Community law and, second, provided that it is not established that
the conduct of the national authorities, in conjunction with the existence of the contested
time-limit, had the effect of depriving the plaintiff of any opportunity of enforcing his
rights before the national courts.
_______________________________________________________________________
C-213/96 – 2/4/98 – Outokumpu Oy (European Court reports 1998 Page I-01777)

Excise duty on electricity - Rates of duty varying according to the method of producing
electricity of domestic origin - Flat rate for imported electricity

An excise duty which is charged on electricity of domestic origin at rates which vary
according to its method of production, while being levied on imported electricity at a flat
rate which is higher than the lowest rate but lower than the highest rate applicable to
electricity of domestic origin, constitutes internal taxation within the meaning of Article
95 of the Treaty, not a charge having equivalent effect to a customs duty within the
meaning of Articles 9 and 12, where it forms part of a general system of taxation which is
levied not only on electrical energy as such but also on several primary energy sources,
and where both imported electricity and electricity of domestic origin form part of the
same tax system and the duty is levied by the same authorities under the same
procedures, whatever the origin of the electricity.
The fact that imported electricity is taxed at the moment of import and electricity of
domestic origin at the moment of production makes no difference for the classification of
such a duty, since in view of the characteristics of electricity those two moments
correspond to the same marketing stage, namely that when the electricity enters the
national distribution network.
Community law does not, at its present stage of development, restrict the freedom of each
Member State to establish a tax system which differentiates between certain products,
even products which are similar within the meaning of the first paragraph of Article 95 of
the Treaty, on the basis of objective criteria, such as the nature of the raw materials used
or the production processes employed. Such differentiation is compatible with
Community law, however, only if it pursues objectives which are themselves compatible
with the requirements of the Treaty and its secondary legislation, and if the detailed rules
are such as to avoid any form of discrimination, direct or indirect, against imports from
other Member States or any form of protection of competing domestic products. Article 95
of the Treaty therefore does not preclude the rate of an internal duty on electricity from
varying according to the manner in which the electricity is produced and the raw
materials used, in so far as that differentiation is based on environmental considerations.
Protection of the environment constitutes one of the essential objectives of the
Community. The Community's task includes the promotion of sustainable and
non-inflationary growth respecting the environment and its activities include a policy in
the sphere of the environment. Furthermore, compatibility with the environment of
methods of producing electrical energy is an important objective of the Community's
energy policy.
The first paragraph of Article 95 of the Treaty precludes an excise duty which forms part
of a national system of taxation on sources of energy from being levied on electricity of
domestic origin at rates which vary according to its method of production while being
levied on imported electricity, whatever its method of production, at a flat rate which,
although lower than the highest rate applicable to electricity of domestic origin, leads, if
only in certain cases, to higher taxation being imposed on imported electricity.
Article 95 of the Treaty is infringed by a system of internal taxation where the taxation on
the imported product and that on the similar domestic product are calculated in a
different manner on the basis of different criteria which lead, if only in certain cases, to
higher taxation being imposed on the imported product.
The fact that, because of the characteristics of electricity, it may prove extremely difficult
to determine precisely the method of production of imported electricity and hence the
primary energy sources used for its production cannot justify such a system of taxation,
since practical difficulties cannot justify the application of internal taxation which
discriminates against products from other Member States. Although in principle Article
95 of the Treaty does not require Member States to abolish objectively justified
differences which national legislation establishes between internal taxes on domestic
products, it is otherwise where such abolition is the only way of avoiding direct or
indirect discrimination against the imported products.
_______________________________________________________________________
C-212/96 – 19/2/98 – Paul Chevassus-Marche v Conseil régional de la Réunion
(European Court reports 1998 Page I-00743)

Dock dues (octroi de mer) - Fiscal rules applicable to the French overseas departments
-Decision 89/688/EEC - Charges having an effect equivalent to a customs duty - Internal
taxation

In so far it authorises a system, subject to monitoring by the Commission, of exemptions


in favour of products from the French overseas departments from the charge termed
octroi de mer, and provided that such exemptions are granted in accordance with the
strict conditions which it lays down, Decision 89/688 concerning the dock dues (octroi de
mer) in the French overseas departments is not incompatible with Articles 9, 12 and 13 of
the Treaty, and the temporary derogations from Article 95 for which it provides are
justified in accordance with Article 227(2), read in conjunction with Article 226, of the
Treaty.
Under the third subparagraph of Article 227(2) of the Treaty, the institutions of the
Community are required to make full use of the procedures provided for in the Treaty, in
particular Article 226, in order to make the economic and social development of the
French overseas departments possible. Article 226 specifies that urgent protective
measures cannot be adopted unilaterally by the Member States but only with the
intervention of the Community institutions, which may authorise only strictly necessary
derogations for limited periods, giving priority to such measures as least disturb the
functioning of the common market.
The imposition of the strict conditions laid down in Article 2(3) of Decision 89/688,
interpreted in the light of the limits laid down in Article 226 of the Treaty for derogations
from the provisions of the Treaty, is such as to ensure that the system of precisely
determined exemptions is compatible with the Treaty.
_______________________________________________________________________
C-201/96 – 6/11/97 – Laboratoires de thérapeutique moderne (LTM) v Fonds
d'intervention et de régularisation du marché du sucre (European Court reports 1997 Page
I-06147)

Refund for use of sugar in the manufacture of certain chemical products - Multivitamin
products and products containing amino acids - Tariff classification

A product presented in the form of tablets consisting of 6 250 IU of vitamin A, smaller


quantities of 11 other vitamins, 550 mg of sugar and 92.5 mg of cocoa, together with
excipients, flavourings and coating, and recommended for the prevention or correction of
vitamin deficiencies linked to an inadequate or unbalanced diet cannot be classified
under heading 30 04 of the Combined Nomenclature and consequently does not come
within the scope of Regulation No 1010/86 laying down general rules for the production
refund on certain sugar products used in the chemical industry, if it has not been
established either that the product has clearly defined therapeutic or prophylactic
characteristics with an effect concentrated on precise functions of the human organism or
that it is capable of being applied in the prevention or treatment of diseases or ailments.
Nor, for identical reasons, can a product which contains a combination of amino acids,
mineral salts and trace elements, along with iron ribonucleate, globin amino extract,
sodium vanadate, copper glycocollate, iodine and excipients, and is indicated in cases of
debility or reduced physical and mental efficiency, convalescence, overwork, poor
appetite, weight loss and ageing, be classified under heading 30 04, and consequently
does not come within the scope of Regulation No 1010/86.
Neither the fact that such products have been given marketing authorizations as
`medicinal products' issued by the competent State authorities in accordance with the
requirements of Directive 65/65 on proprietary medicinal products nor the fact that they
are `medicinal products according to presentation' within the meaning of Directive 65/65
or are distributed exclusively in pharmacies has any determinant value in regard to their
tariff classification.
_______________________________________________________________________
C-162/96 – 16/6/98 – A. Racke GmbH & Co. v Hauptzollamt Mainz (European Court
reports 1998 Page I-03655)

EEC/Yugoslavia Cooperation Agreement - Suspension of trade concessions - Vienna


Convention on the Law of Treaties - Rebus sic stantibus clause

The jurisdiction of the Court of Justice to give preliminary rulings under Article 177 of
the Treaty concerning the validity of acts of the Community institutions cannot be limited
by the grounds on which the validity of those measures may be contested. Since such
jurisdiction extends to all grounds capable of invalidating those measures, the Court is
obliged to examine whether their validity may be affected by reason of the fact that they
are contrary to a rule of international law.
A provision of an agreement concluded by the Community with non-member countries
must be regarded as being directly applicable when, regard being had to its wording and
the purpose and nature of the agreement itself, the provision contains a clear and precise
obligation which is not subject, in its implementation or effects, to the adoption of any
subsequent measure.
Such is the case with Article 22(4) of the Cooperation Agreement between the EEC and
the Socialist Federal Republic of Yugoslavia, which, as amended by Article 4 of the
Additional Protocol to that agreement, lays down in respect of certain wines a
Community tariff quota within which dismantling of customs duties on importation into
the Community is to take place.
When invoking in legal proceedings the preferential customs treatment granted to him by
Article 22(4) of the Cooperation Agreement between the EEC and the Socialist Federal
Republic of Yugoslavia, an individual may challenge the validity under customary
international law rules of a regulation suspending the trade concessions granted under
that Agreement.
An agreement concluded by the Council with a non-member country in accordance with
the provisions of the EC Treaty is, as far as the Community is concerned, an act of a
Community institution, and the provisions of such an agreement form an integral part of
Community law. If, therefore, a Community regulation suspending the application of a
cooperation agreement were to be declared invalid by reason of its being contrary to
rules of customary international law, the trade concessions granted by the provisions of
that agreement would remain applicable in Community law until the Community brought
that agreement to an end in accordance with the relevant rules of international law.
Moreover, the European Community must respect international law in the exercise of its
powers. It is therefore required to comply with the rules of customary international law
when adopting a regulation suspending the trade concessions granted by, or by virtue of,
an agreement which it has concluded with a non-member country. It follows that the
rules of customary international law concerning the termination and the suspension of
treaty relations by reason of a fundamental change of circumstances are binding upon
the Community institutions and form part of the Community legal order.
Where an individual is incidentally challenging the validity of a Community regulation
under rules of customary international law concerning the termination and the
suspension of treaty relations by reason of a fundamental change of circumstances in
order to rely upon rights which he derives directly from an agreement of the Community
with a non-member country, the case in question does not concern the direct effect of
those rules.
Moreover, those rules form an exception to the pacta sunt servanda principle, which
constitutes a fundamental principle of any legal order and, in particular, the
international legal order. Applied to international law, that principle requires that every
treaty be binding upon the parties to it and be performed by them in good faith. In those
circumstances, an individual relying in legal proceedings on rights which he derives
directly from an agreement with a non-member country may not be denied the possibility
of challenging the validity of a regulation which, by suspending the trade concessions
granted by that agreement, prevents him from relying on it, and of invoking, in order to
challenge the validity of the suspending regulation, obligations deriving from rules of
customary international law which govern the termination and suspension of treaty
relations.
However, because of the complexity of those rules and the imprecision of some of the
concepts to which they refer, judicial review must necessarily, and in particular in the
context of a preliminary reference for an assessment of validity, be limited to the question
whether, by adopting the suspending regulation, the Council made manifest errors of
assessment concerning the conditions for applying those rules.
_______________________________________________________________________
C-143/96 – 9/12/97 – Leonhard Knubben Speditions GmbH v Hauptzollamt Mannheim
(European Court reports 1997 Page I-07039)

Common Customs Tariff - 'Crushed' peppers within the meaning of subheading 0904 20
90 of the Combined Nomenclature

Subheading 0904 20 of the Combined Nomenclature, in the version resulting from


Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to
Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on
the Common Customs Tariff and from Commission Regulation (EEC) No 2886/89 of 2
August 1989 amending Annex I to Regulation No 2658/87, must be construed as meaning
that the expression `sonst zerkleinert' (`otherwise crushed') does not cover a product cut
into pieces measuring between 4 and 8 mm.
_______________________________________________________________________
C-142/96 – 17/7/97 – Hauptzollamt München v Wacker Werke GmbH & Co. KG
(European Court reports 1997 Page I-04649)

Outward processing relief - Total or partial relief from import duties - Determination of
value of compensating products and temporary export goods - Reasonable means of
determining value

The reasonable means of determining outward processing costs for the purposes of the
second method set out in Article 13(2) of Regulation No 2473/86 on outward processing
relief arrangements and the standard exchange system, implies the use of means
appropriate to the circumstances of each case and can entail taking account of the
transaction value of the temporary export goods, which comprises the purchase price and
any uplifts, even if the rate of duty is higher for the unprocessed goods than for the
compensating products. The possibility of tariff anomalies arising, and resulting in
customs advantages for the traders concerned, is a risk inherent in the arrangements
introduced by the regulation on outward processing, the primary aim of which is to
prevent customs duties from being charged on goods exported from the European
Community for processing in respect of which Article 1 permits total relief from import
duties in certain circumstances.
_______________________________________________________________________
C-105/96 – 17/6/97 – Codiesel - Sociedade de Apoio Técnico à Indústria Ldª v Conselho
Técnico Aduaneiro (European Court reports 1997 Page I-03465)

Common Customs Tariff - Tariff headings - Electrical apparatus constituting an


'uninterruptible power supply' - Classification in the Nomenclature of the Common
Customs Tariff

An electrical apparatus which is an `uninterruptible power supply' consisting, on the one


hand, of a cabinet containing a rectifier/charger, an inverter and a static bypass switch
and, on the other, of a cabinet housing a sealed lead-acid accumulator battery must be
classified under tariff subheading 85.01.B.II as `transformers, static converters, rectifiers
and rectifying apparatus'. General Rule 3(b) on the interpretation of the nomenclature of
the Common Customs Tariff provides that the classification of products made up of
different components depends on the material or component which gives them their
essential character. Since the product in dispute is designed to regulate and ensure a
permanent power supply, it is the rectifier/charger cabinet which confers on it its
essential character, whereas the accumulator cabinet is of only secondary importance.
_______________________________________________________________________
C-103/96 – 13/3/97 – Directeur général des douanes et droits indirects v Eridania
Beghin-Say SA (European Court reports 1997 Page I-01453)

Customs duties - Inward processing arrangements - Equivalent compensation system


-Cane sugar and beet sugar

In adopting provisions for the implementation of a basic regulation, the Community


authority empowered to do so is required not to exceed the powers conferred upon it by
that regulation for the implementation of the rules which it contains. The fact that Article
9 of Regulation No 3677/86, adopted under the Regulatory Committee procedure for
implementation of the basic regulation, Regulation No 1999/85 on inward processing
relief arrangements, introduced, for recourse to equivalent compensation to be available
under those arrangements, the condition that the equivalent goods must fall under the
same Common Customs Tariff subheading as the import goods, whereas the basic
regulation merely requires that the former should be of the same quality and display the
same characteristics as the latter, does not mean that those powers were exceeded.
First, Article 2(4) of the basic regulation provides that the implementing measures to be
adopted under the habilitation procedure may be designed to prohibit or limit recourse to
the equivalent compensation system, which derogates from the inward processing
arrangements. Second, the requirement of classification under the same subheading gives
effect to the criterion, which as well as being clear and precise and capable of
contributing to the attainment of the objective of precluding abuse of inward processing
arrangements expressly referred to by the basic regulation, cannot be regarded as
conflicting with the general objective of those arrangements, namely to promote exports
by Community undertakings.
The condition for recourse to equivalent compensation under the inward processing
relief arrangements introduced by Article 9 of Regulation No 3677/86 to the effect that
the equivalent goods must fall under the same Common Customs Tariff subheading as the
import goods is not manifestly disproportionate in relation to the objective of combating
fraud which it pursued and therefore does not constitute a breach of the principle of
proportionality. Nor does it breach the principle of the protection of legitimate
expectations and legal certainty since, although relying on a criterion deriving from
other rules, which are by their nature liable to be periodically amended, it places
economic operators in a position such that they are able at any time to determine clearly
and precisely whether or not equivalent compensation is available.
_______________________________________________________________________
C-93/96 – 29/5/97 – Indústria e Comércio Têxtil SA (ICT) v Fazenda Pública (European
Court reports 1997 Page I-02881)

Anti-dumping duty - Council Regulation (EEC) No 738/92 - Free-at-frontier price


-Increase in the event of deferred payment

The increase provided for in Article 1(3) of Regulation No 738/92 imposing a definitive
anti-dumping duty on imports of cotton yarn originating in Brazil and Turkey must be
applied whenever it is agreed that imported goods are to be paid for more than 30 days
after their arrival in the customs territory of the Community, even where the difference
between the price for deferred payment and that for immediate payment is greater, in
percentage terms, than the increase to be applied.
That increase is intended to offset, automatically and at a standard rate, the commercial
advantage which can result from deferred payment terms for goods, in order to prevent a
form of credit dumping.
Such an increase must be applied to the price actually paid or payable for the goods
when they are sold for export to the customs territory of the Community, excluding
charges for interest as consideration for the deferred payment terms granted, provided
that those terms are the subject of a `financing arrangement' within the meaning of
Article 3(2) of Regulation No 1495/80, and that the level of charges reflects prevailing
interest rates.
The free-at-Community-frontier price, to which the anti-dumping duty is applied,
corresponds to the customs value of the imported goods, as defined by Article 3(1) of
Regulation No 1224/80 on the valuation of goods for customs purposes, namely the price
actually paid or payable for the goods when sold for export to the customs territory of the
Community.
Under Article 3(2) of Regulation No 1495/80 implementing certain provisions of Articles
1, 3 and 8 of Regulation No 1224/80, charges for interest due under a financing
arrangement entered into by the buyer and relating to the purchase of imported goods
are not to be included in the customs value determined in that way, provided that those
charges are distinguished from the price actually paid or payable for the goods, that the
financing arrangement has been made in writing and that the buyer can demonstrate not
only that such goods are actually sold at the price declared as the price actually paid or
payable, but also that the claimed rate of interest does not exceed the level for such
transactions prevailing in the country where, and at the time when, the finance was
provided.
_______________________________________________________________________
C-80/96 – 15/1/98 – Quelle Schickedanz AG und Co. v Oberfinanzdirektion Frankfurt
am Main (European Court reports 1998 Page I-00123)

Common Customs Tariff - Classification of a set of goods - Validity of Point 6 of the


Annex to Commission Regulation (EC) No 1966/94

Regulation No 1966/94 concerning the classification of certain goods in the combined


nomenclature is invalid in so far as in Point 6 of the Annex thereto it classifies goods put
up in sets for retail sale, comprising a brassière and briefs, separately under tariff
subheadings 6108 21 00 and 6212 10 00. By providing for a separate classification for
each item of such a set when General Rule No 3(c) for the interpretation of the combined
nomenclature requires a single classification, the Commission materially amended the
combined nomenclature and thus acted ultra vires.
On a proper construction of the combined nomenclature, goods put up in sets for retail
sale, comprising a brassière and briefs, are to be classified pursuant to General Rule No
3(c) under tariff subheading 6212 10 00, that is to say, the heading which occurs last in
numerical order among those which equally merit consideration.
_______________________________________________________________________
C-68/96 – 17/6/98 – Grundig Italiana SpA v Ministero delle Finanze (European Court
reports 1998 Page I-03775)

National tax on audiovisual and photo-optical products - Internal taxation - Possible


incompatibility with Community law

Article 95 of the Treaty is to be interpreted as precluding a Member State from


introducing and levying a consumption tax in so far as the taxable amount and the
procedure for collecting the tax are different for domestic products and for products
imported from other Member States.
Article 95 must be considered to have been infringed by national legislation introducing
a consumption tax in so far as
- for products manufactured in that State, no transport or distribution costs are included
in the taxable amount, whereas, for products imported from other Member States, the
taxable amount consists of the value for customs purposes, plus any costs and charges for
delivery to the Italian border, less transport or distribution costs incurred within that
State;
- in the case of domestic products, all costs borne within the national territory in respect
of marketing are excluded from the taxable amount, whereas, for imported products,
costs related to marketing within the national territory but incurred outside it are
included;
- the possibility of making a flat-rate deduction for the purposes of calculating the
taxable amount is reserved to domestic products; and
- for imported goods, the obligation to pay the charge arises at the time of importation
through customs, whereas for domestic goods, it arises only when the domestic producer
lodges the return with the tax authorities during the month following the quarter in which
the goods have been placed on the market, the event giving rise to the charge occurring
when the product intended for consumption is placed on the domestic market. ________
T-50/96 – 17/9/98 – Primex Produkte Import-Export GmbH & Co. KG, Gebr. Kruse
GmbH, Interporc Im- und Export GmbH v Commission of the European Communities
(European Court reports 1998 Page II-03773)

Action for annulment - Importation of high-quality beef ('Hilton beef') - Regulation


(EEC) No 1430/79 - Article 13 - Commission decision refusing remission of import
duties - Rights of the defense - Manifest error of assessment

1. Respect for the rights of the defence in all proceedings which are initiated against a
person and are liable to culminate in a measure adversely affecting that person is a
fundamental principle of Community law which must be guaranteed, even in the absence
of any rules governing the procedure in question. In view of the discretion enjoyed by the
Commission in adopting a decision pursuant to the general equitable provision contained
in Article 13 of Regulation No 1430/79 on the repayment or remission of import or export
duties, it is all the more important that respect for the right to be heard be guaranteed in
procedures initiated pursuant to that regulation. That principle requires, in that context,
not only that the person concerned should be placed in a position in which he may
effectively make known his views on the relevant circumstances, but also that he should
at least be able to put his own case on the documents taken into account by the
Commission or even, when the latter is accused of having committed serious breaches of
its obligations, that he should have access to all non-confidential official documents
concerning the decision in question.
More specifically, when the Commission contemplates diverging from the position taken
by the competent national authorities on whether the person concerned was guilty of
obvious negligence, within the meaning of Article 13, it has a duty to arrange for that
person to be heard, since such a decision involves a complex legal appraisal which can
be effected only on the basis of all the relevant facts.
2. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid
or remitted in special situations which result from circumstances in which no deception
or obvious negligence may be attributed to the person concerned, constitutes a general
equitable provision designed to cover situations other than those which arose most often
in practice and for which special provision could be made when Regulation No 1430/79
was adopted. It is intended to apply, inter alia, where the circumstances characterising
the relationship between a trader and the administration are such that it would be
inequitable to require the trader to bear a loss which it normally would not have
incurred.
The Commission must assess all the facts in order to determine whether they constitute a
special situation within the meaning of that provision. Although it enjoys a measure of
discretion in that respect, it is required to exercise that power by actually balancing, on
the one hand, the Community interest in ensuring that the customs provisions are
respected and, on the other, the interest of the importer acting in good faith not to suffer
harm beyond normal commercial risk. Consequently, when examining whether an
application for remission is justified, the Commission cannot simply take account of the
conduct of importers but must also assess the impact of its own conduct - and possible
fault - on the resulting situation.
Therefore, although the presentation, for the purpose of obtaining preferential tariff
treatment of goods declared for free circulation, of documents subsequently found to be
falsified does not in itself constitute a special situation justifying remission of import
duties even where such documents were presented in good faith, that does not preclude
such remission when, by failing effectively to monitor use of a tariff quota exempt from
import duties, the Commission committed a serious breach of its duty to ensure that the
quota was properly applied and was not exceeded by means of falsified certificates. 3.
Article 13 of Regulation No 1430/79 provides that the competent authorities may repay or
remit import duties in special situations which result from circumstances in which no
deception or obvious negligence may be attributed to the person concerned. Provided
that those two conditions are satisfied, the person liable is entitled to reimbursement or
remission of the duties, since to hold otherwise would deprive that provision of its
effectiveness.
It follows that remission of import duties cannot be conditional upon satisfaction of the
three cumulative conditions laid down in Article 5(2) of Regulation No 1697/79 on the
post-clearance recovery of the duties in question, namely that the duties must not have
been collected as a result of an error made by the competent authorities, that the person
liable must have acted in good faith - that is to say, he could not reasonably have
detected the error made by the competent authorities - and that he must have complied
with all the provisions laid down by the rules in force so far as his customs declaration is
concerned. Although the two provisions referred to above pursue the same aim, namely
to limit the post-clearance payment of import or export duties to cases where such
payment is justified and is compatible with a fundamental principle such as the
protection of legitimate expectations, they can none the less not be equated. Whilst
Article 5(2) of Regulation No 1697/79 is intended to protect the legitimate expectation of
the person liable that the decision whether or not to proceed with recovery of customs
duties is based on considerations which are completely sound, Article 13 of Regulation
No 1430/79 constitutes a general equitable provision and would cease to be such if the
conditions laid down in Article 5(2) had to be satisfied in every case.
_______________________________________________________________________
T-42/96 – 19/2/98 – Eyckeler & Malt AG v Commission of the European Communities
(European Court reports 1998 Page II-00401)

Action for annulment - Importation of high-quality beef ('Hilton beef') - Regulation


(EEC) No 1430/79 - Article 13 - Commission decision refusing remission of import
duties - Rights of the defence - Manifest error of assessment

1. Although procedural rules are generally held to apply to all proceedings pending at
the time when they enter into force, this is not the case with substantive rules. On the
contrary, the latter are usually interpreted as applying to situations existing before their
entry into force only in so far as it clearly follows from their terms, objectives or general
scheme that such an effect must be given to them.
That is not true of the rule relating to the remission of import duties contained in Article
239 of Regulation No 2913/92 establishing the Community Customs Code which
replaced, with effect from 1 January 1994, the rules set out in Article 13 of Regulation No
1430/79 on the repayment or remission of import or export duties, meaning that an
application for remission of duties must be examined in the light of the latter provision in
the event that it was in force at the time when the importations of the goods at issue were
made and the entry of the goods for free circulation accepted.
2. Respect for the rights of the defence in all proceedings which are initiated against a
person and are liable to culminate in a measure adversely affecting that person is a
fundamental principle of Community law which must be guaranteed, even in the absence
of any rules governing the procedure in question. In view of the margin of assessment
enjoyed by the Commission in adopting a decision pursuant to the general equitable
provision contained in Article 13 of Regulation No 1430/79 on the repayment or
remission of import or export duties, it is all the more important that respect for the right
to be heard is guaranteed in procedures initiated pursuant to that regulation. That
principle requires, in that context, not only that the person concerned should be placed in
a position in which he may effectively make known his views on the relevant
circumstances, but also that he should at least be able to put his own case on the
documents taken into account by the Commission or even, when the latter is accused of
having committed serious breaches of its obligations, that he should have access to all
non-confidential official documents concerning the decision in question. More
specifically, when the Commission contemplates diverging from the position taken by the
competent national authorities on whether the person concerned was guilty of obvious
negligence, within the meaning of Article 13, it has a duty to arrange for that person to
be heard, since such a decision involves a complex legal appraisal which can be effected
only on the basis of all the relevant facts.
3. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid
or remitted in special situations which result from circumstances in which no deception
or obvious negligence may be attributed to the person concerned, constitutes a general
equitable provision designed to cover situations other than those which arose most often
in practice and for which special provision could be made when Regulation No 1430/79
was adopted. It is intended to apply, inter alia, where the circumstances characterising
the relationship between a trader and the administration are such that it would be
inequitable to require the trader to bear a loss which it normally would not have
incurred.
The Commission must assess all the facts in order to determine whether they constitute a
special situation within the meaning of that provision. Although it enjoys a margin of
assessment in that respect, it is required to exercise that power by actually balancing, on
the one hand, the Community interest in ensuring that the customs provisions are
respected and, on the other, the interest of the importer acting in good faith not to suffer
harm beyond normal commercial risk. Consequently, when examining whether an
application for remission is justified, the Commission cannot simply take account of the
conduct of importers but must also assess the impact of its own conduct on the resulting
situation even if it is at fault.
Therefore, although it is true that the presentation, for the purpose of obtaining
preferential tariff treatment of goods declared for free circulation, of documents
subsequently found to be falsified does not in itself constitute a special situation justifying
remission of import duties even where such documents were presented in good faith, that
rule does not preclude such remission when, by failing effectively to monitor use of a
tariff quota exempt from import duties, the Commission committed a serious breach of its
duty to ensure that the quota was properly applied and was not exceeded by means of
falsified certificates.
4. Article 13 of Regulation No 1430/79 provides that the competent authorities may repay
or remit import duties in special situations which result from circumstances in which no
deception or obvious negligence may be attributed to the person concerned. Provided
that those two conditions are satisfied, the person liable is entitled to reimbursement or
remission of the duties, since to hold otherwise would deprive that provision of its
effectiveness.
It follows that remission of import duties cannot be conditional upon the three cumulative
conditions laid down in Article 5(2) of Regulation No 1697/79 on the post-clearance
recovery of the duties in question being satisfied, namely that the duties must not have
been collected as a result of an error made by the competent authorities, that the person
liable must have acted in good faith - that is to say, he could not reasonably have
detected the error made by the competent authorities - and that he must have observed all
the provisions laid down by the rules in force as far as his customs declaration is
concerned. Although the two provisions referred to above pursue the same aim, namely
to limit the post-clearance payment of import or export duties to cases where such
payment is justified and is compatible with a fundamental principle such as the
protection of legitimate expectations, they can none the less not be equated. Whilst
Article 5(2) of Regulation No 1697/79 is intended to protect the legitimate expectation of
the person liable that all the information and criteria on which the decision whether or
not to proceed with recovery of customs duties is based are correct, Article 13 of
Regulation No 1430/79 constitutes a general equitable provision and would cease to be
such if the conditions laid down in Article 5(2) had to be satisfied in every case.
_______________________________________________________________________
C-37/96 and C-38/96 – 30/4/98 – Sodiprem SARL and Others (C-37/96) and Roger
Albert SA (C-38/96) v Direction générale des douanes (European Court reports 1998
Page I-02039)

Dock dues (octroi de mer) - Fiscal rules applicable to the French overseas departments
-Decision 89/688/EEC - Charges having an effect equivalent to a customs duty - Internal
taxation

Within the framework of proceedings brought under Article 177 of the Treaty, the Court
does not have jurisdiction to give a ruling on the compatibility of a national measure with
Community law. However, it does have jurisdiction to supply the national court with a
ruling on the interpretation of Community law so as to enable that court to determine
whether such compatibility exists in order to decide the case before it. On a proper
construction, Decision 89/688 concerning the dock dues (octroi de mer) in the French
overseas departments precludes exemptions of a general or systematic order, which would
thus amount to the reintroduction of a charge having an effect equivalent to that of a
customs duty. That decision does, however, authorise exemptions which are necessary,
proportionate and precisely determined and which respect the strict conditions laid down
in Article 2(3) thereof, interpreted in the light of the limits laid down in Article 226 of the
Treaty.
Those conditions include, first of all, the general rule, stated in Articles 1 and 2 of the
decision, that octroi de mer is to apply in principle to all products whether imported into
or produced in the French overseas departments. Next, the system of exemptions
constitutes an exception to that general rule. It must disturb the common market as little
as possible and may thus not adversely affect the terms of trade to an extent contrary to
the common interest. Monitoring of those conditions is the responsibility of the
Community institutions, in particular the Commission, which must assess the extent to
which such measures are necessary and proportionate. Finally, that system is a measure
of support for local production faced with difficulties as a result of isolation and distance
from metropolitan France, its aim being to promote the economic and social development
of the French overseas departments in that it must contribute to the promotion or
maintenance of an economic activity in those departments and be in line with an
economic and social development strategy.
_______________________________________________________________________
C-28/96 – 17/9/97 – Fazenda Pública v Fricarnes SA (European Court reports 1997
Page I-04939)

National charges on the marketing of meat - Charge having equivalent effect - Internal
taxation - Turnover tax

Pecuniary charges under a general system of internal charges applying systematically to


domestic and imported products according to the same criteria are, in principle, covered
by Article 95 et seq. of the Treaty.

A charge on the marketing of meat levied without distinction on domestic and imported
products constitutes a charge having an effect equivalent to a customs duty, prohibited by
Articles 9 and 12 of the Treaty, if the revenue from it is intended to finance activities
benefiting only the taxed domestic products and if the resultant advantages fully offset the
burden which the latter products bear; if those advantages only partly offset the burden
borne by the domestic products, the charge constitutes discriminatory internal taxation
prohibited by Article 95 of the Treaty and must be reduced proportionally.

If the activities financed by the charge benefit domestic products and taxed imported
products but the former obtain a proportionally greater advantage from them, the charge
constitutes, to that extent, a charge having an effect equivalent to a customs duty or
discriminatory internal taxation, depending on whether the advantage accruing to the
taxed domestic products fully or only partly offsets the burden which they bear.

It follows that, with a view to determining how the charges on the marketing of meat and
offal, the charge in respect of ruminants and the charge for measures to combat swine
fever are to be characterized in law, it is incumbent on the national court to consider:

- whether the revenue from the charge specifically intended to be used to combat diseases
of livestock reared on national territory benefits exclusively animals of national origin
or, at least, benefits them proportionally more than imported animals;

- whether the revenue from all the charges at issue is used for stabilization only of trade
with the other Member States in the products which bear the charges;

- whether the institutional integration of the organizations representing the economic


agents concerned and the implementation of the national and Community aid schemes
and financial and fiscal incentives in favour of the agri-foodstuffs industry and the
distribution of agri-foodstuffs, to which part of the revenue from the charges in question
is appropriated, benefit only domestic production or whether they benefit such
production proportionally more than imported products.

Since the aim pursued by Article 33 of the Sixth Directive (77/388) on the harmonization
of the laws of the Member States relating to turnover taxes is to preclude the introduction
of taxes, duties and charges which, because they are levied on the movement of goods
and services in a way comparable to value added tax, would compromise the functioning
of the common system of value added tax, that provision does not preclude the levying of
a charge which is applied only to certain products, is not proportional to the price of
those products, is not charged at each stage of the production and distribution process
and is not imposed on the added value of the goods. Since it displays none of the
characteristics of value added tax, such a charge does not apply to the movement of
goods and services in a manner comparable to value added tax.
_______________________________________________________________________
C-405/95 – 15/5/97 – Bioforce GmbH v Oberfinanzdirektion München (European Court
reports 1997 Page I-02581)

Common customs tariff - Heading 3004 - Echinacea – Medicament

The Common Customs Tariff is to be interpreted as meaning that Echinacea purpurea


extract-based drops should be classified under heading 3004. The curative or
prophylactic properties of that product as well as the way in which it is packaged,
dispensed and marketed are in themselves such as to cause it to be regarded as a product
possessing the characteristic properties of a medicament. In the Member States in which
it is marketed the product in question is, moreover, authorized to be put on the market as
a medicament or, at the very least, has been the subject of an application for
authorization to that end. Furthermore, however great the alcohol content of the product
in question it does not alter its nature, since the alcohol acts as an adjuvant, preservative
and vehicle for that product.
_______________________________________________________________________
C-390/95 P – 11/2/99 – Antillean Rice Mills NV, European Rice Brokers AVV and
Guyana Investments AVV v Commission of the European Communities (European Court
reports 1999 Page I-00769)

Appeal (T-480/93 and T-483/93) – Competence of the Council to impose restrictions on


the import of agricultural products originating in the overseas countries and territories

1. It follows from Article 49 of the Statute of the Court of Justice that interveners before
the Court of First Instance are regarded as parties before that court. Consequently, if an
appeal is brought against that court's judgment, Article 115(1) of the Rules of Procedure
of the Court of Justice applies to them, so that they are dispensed from having to make a
fresh application to intervene before the Court of Justice under Articles 93 and 123 of the
Rules of Procedure.
Since no distinction is made, as regards the pleas they may raise in an appeal, between
the parties who are entitled to lodge a response, an intervener who is so entitled must be
able to raise pleas relating to any point of law on which the contested judgment is based.
Such a party may therefore plead before the Court of Justice that the application was
inadmissible, despite the fact that the party it supported before the Court of First
Instance, which raised that plea at first instance, has not repeated it in its response to the
appeal.
2. The judicial protection which an individual enjoys under the fourth paragraph of
Article 173 of the Treaty cannot depend on whether the contested decision is addressed to
one Member State or to several, but must be established on the basis of the specific
situation of that individual compared to all other persons concerned. More particularly,
in the case of a decision introducing a safeguard measure, what matters for identifying
the persons individually concerned by that decision is the protection enjoyed under
Community law by the country or territory, and by the undertakings concerned, against
which the safeguard measure is adopted.
3. The Court of First Instance has exclusive jurisdiction to find the facts, save where a
substantive inaccuracy in its findings is attributable to the documents submitted to it, and
to appraise those facts. That appraisal thus does not, save where the clear sense of the
evidence has been distorted, constitute a point of law which is subject, as such, to review
by the Court of Justice in the context of an appeal.
4. The adoption by the Community of a safeguard clause authorising restrictions on the
freedom to import agricultural products originating in the overseas countries and
territories (OCTs) is not excluded in the context of the second paragraph of Article 136
of the Treaty.
First, although the OCTs are associated countries and territories which have special
links with the Community, they do not form part of the Community, and free movement of
goods between the OCTs and the Community does not exist unrestrictedly at this stage, in
accordance with Article 132 of the Treaty.
Second, when the Council adopts decisions concerning the OCTs under the second
paragraph of Article 136, which authorises it to adopt decisions concerning the
association on the basis of the principles set out in the Treaty, it must take account not
only of the principles in Part Four of the Treaty on the OCTs but also of the other
principles of Community law, including those relating to the common agricultural policy.
Moreover, the promotion by the Community of the economic and social development of
the OCTs, which is provided for by Article 3(r) and Article 131 of the Treaty, does not
imply an obligation to give them privileged treatment, and the abolition of customs duties
on entry into the Community of products originating in the OCTs, provided for by Article
133(1) of the Treaty, does not exclude the possibility of adopting, on the basis of the
second paragraph of Article 136, a safeguard clause which limits imports only
exceptionally, partially and temporarily.
5. The Commission has a wide discretion in the application of Article 109 of Decision
91/482 on the association of the overseas countries and territories, which empowers it to
take or authorise safeguard measures where certain conditions are met. In cases
involving such a discretion, the Court of First Instance must restrict itself to considering
whether the exercise of that discretion contains a manifest error or constitutes a misuse
of power or whether the Commission clearly exceeded the bounds of its discretion.
6. The objective of Decision 93/211, by which the Commission reduced the minimum
import price for rice originating in the Netherlands Antilles which it had imposed as a
safeguard measure by Decision 93/127 to a level such that the rice in question was no
longer in an unfavourable position in relation to rice from non-member countries, is to
fix a threshold price for imports of Antillean rice which least disturbs the functioning of
the association of the OCTs with the Community, while remedying the difficulties which
have appeared on the Community market. Having regard to that objective, in so far as
the decision places Antillean rice in an unfavourable competitive position in relation to
Community rice, it is not contrary to the principle of proportionality, since it follows from
the very essence of a safeguard measure that some imported products will be subjected to
rules which are unfavourable in comparison with Community products.
7. In a legislative context involving the exercise of a wide discretion, a breach of
Community law by an institution is not in itself sufficient for the non-contractual liability
of the Community to be incurred, under the second paragraph of Article 215 of the
Treaty, in respect of damage suffered by individuals. Such liability cannot be incurred
unless the institution concerned has manifestly and gravely disregarded the limits on the
exercise of its powers.
Moreover, that a measure which is challenged in an action for damages is legislative in
character is not excluded by the fact that it is in the form of a decision and hence in
principle capable of being the subject of an action for annulment, nor by the fact that the
applicant is individually concerned by the measure, since the legislative character of a
measure depends on its nature, not its form, and an action for damages is an independent
remedy.
_______________________________________________________________________
C-382/95 – 18/12/97 – Techex Computer + Grafik Vertriebs GmbH v Hauptzollamt
München (European Court reports 1997 Page I-07363)

Common Customs Tariff - Tariff headings - Tariff classification of a 'Vista board'


electronic component intended for image processing and capable of being used as a
graphics card in a computer - Classification in the Combined Nomenclature

Image processing, as it can be carried out with an automatic data-processing machine


unit which includes, inter alia, an analogue/digital converter, a high-quality graphics
processor and a digital/analogue converter, is not to be regarded as the performance of a
`specific function' for the purposes of the last paragraph of Note 5(B) to Chapter 84 of
the Combined Nomenclature of the Common Customs Tariff in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by the annexes to Commission
Regulation (EEC) No 3174/88 of 21 September 1988, Commission Regulation (EEC) No
2886/89 of 2 August 1989 and Commission Regulation (EEC) No 2472/90 of 31 July
1990.
_______________________________________________________________________
C-375/95 – 23/10/97 – Commission of the European Communities v Hellenic Republic
(European Court reports 1997 Page I-05981)

Failure to fulfil obligations - Taxation of motor vehicles – Discrimination

National legislation which, as regards the application of a special consumer tax and flat-
rate added special duty, determines the taxable value of imported used cars by reducing
the price of equivalent new cars by 5% for each year of age of the vehicles concerned, the
maximum reduction allowed as a rule being 20%, is contrary to Article 95 of the Treaty.
Since the annual depreciation in the value of cars is in general considerably more than
5%, that depreciation is not linear, especially in the first years when it is much more
marked than subsequently and since, finally, vehicles continue to depreciate more than
four years after being put into circulation, the taxable value resulting from those detailed
rules for calculating taxation does not correspond to the value resulting from the actual
wear and tear undergone by used cars, as a result of which the special consumer tax and
flat-rate added special duty imposed on imported used cars are usually higher than the
proportion of those taxes still incorporated in the value of used cars already registered
and purchased on the domestic market.
Similarly, national legislation which excludes anti-pollution technology cars from the
benefit of the reduced rates of special consumer tax applicable to that type of vehicle is
contrary to Article 95.
_______________________________________________________________________
C-347/95 – 17/9/97 – Fazenda Pública v União das Cooperativas Abastecedoras de Leite
de Lisboa, UCRL (UCAL) (European Court reports 1997 Page I-04911)

National charge on the marketing of dairy products - Charge having equivalent effect
-Internal taxation - Turnover tax

A charge on the marketing of diary products levied without distinction on domestic and
imported products constitutes a charge having an effect equivalent to a customs duty,
prohibited by Articles 9 and 12 of the Treaty, if the revenue from it is intended to finance
activities benefiting only the taxed domestic products and if the resultant advantages fully
offset the burden which the latter products bear; if those advantages only partly offset the
burden borne by the domestic products, the charge constitutes discriminatory internal
taxation prohibited by Article 95 of the Treaty and must be reduced proportionally. If the
activities financed by the charge benefit domestic products and taxed imported products
but the former obtain a proportionally greater advantage from them, the charge
constitutes, to that extent, a charge having an effect equivalent to a customs duty or
discriminatory internal taxation, depending on whether the advantage accruing to the
taxed domestic products fully or only partly offsets the burden which they bear. It follows
that, with a view to determining how the charges on the marketing diary products are to
be characterized in law, it is incumbent on the national court to consider:
- whether the revenue from the charge is used for stabilization only of trade with the
other Member States in the products which bear the charges;
- whether the institutional integration of the organizations representing the economic
agents concerned and the implementation of the national and Community aid schemes
and financial and fiscal incentives in favour of the agri-foodstuffs industry and the
distribution of agri-foodstuffs, to which part of the revenue from the charges in question
is appropriated, benefit only domestic production or whether they benefit such
production proportionally more than imported products.
Since the aim pursued by Article 33 of the Sixth Directive (77/388) on the harmonization
of the laws of the Member States relating to turnover taxes is to preclude the introduction
of taxes, duties and charges which, because they are levied on the movement of goods
and services in a way comparable to value added tax, would compromise the functioning
of the common system of value added tax, that provision does not preclude the levying of
a charge which is applied only to certain products, is not proportional to the price of
those products, is not charged at each stage of the production and distribution process
and is not imposed on the added value of the goods. Since it displays none of the
characteristics of value added tax, such a charge does not apply to the movement of
goods and services in a manner comparable to value added tax.
_______________________________________________________________________
C-338/95 – 20/11/1997 – Wiener S.I. GmbH v Hauptzollamt Emmerich (European Court
reports 1997 Page I-06495)

Common Customs Tariff - Tariff heading – Nightdress

Subheading 60.04 B IV b 2 bb of the Common Customs Tariff, in the version resulting


from Regulation No 3400/84 amending Regulation No 950/68 on the Common Customs
Tariff, must be construed as covering under garments which, by reason of their objective
characteristics, are intended to be worn exclusively or essentially in bed. It is for the
national court to determine, in the light of the cut of the garments, their composition and
presentation, and developments in fashion within the Member State concerned, whether
those garments do have such objective characteristics or whether, on the contrary, they
may be worn equally in bed and elsewhere.
_______________________________________________________________________
C-334/95 – 17/7/97 – Krüger GmbH & Co. KG v Hauptzollamt Hamburg-Jonas
(European Court reports 1997 Page I-04517)

Export refunds - Milk products - Discrimination - Assessment of validity - National court


- Interim relief - Community Customs Code

Article 17(1) of Regulation No 804/68, on the common organization of the market in milk
and milk products, as amended by Regulation No 3904/87, which empowers the
Community to grant export refunds on milk products included in the composition of other
products, read in conjunction with its annex, which includes in the list of products
attracting refunds `preparations with a basis of coffee' and refers in this regard to
subheading 2101 10 of the Combined Nomenclature (1992), is to be interpreted as
allowing export refunds to be granted in respect of milk products contained in both
preparations with a basis of coffee and preparations with a basis of extracts, essences or
concentrates of coffee.

Article 244 of Regulation No 2913/92, establishing the Community Customs Code, which
lays down the conditions under which suspension of implementation of decisions taken by
customs authorities in relation to the application of customs rules may be granted, is not
applicable to demands for repayment of export refunds. Export refunds constitute the
external aspect of the common agricultural pricing policy within the Community and
cannot therefore be regarded as measures governed by customs rules.

A national court may suspend implementation of a national administrative decision based


on a Community act only if certain conditions are satisfied; it must entertain serious
doubts as to the validity of the Community act; if the validity of the contested act is not
already in issue before the Court of Justice, it must itself refer the question to the Court
of Justice; there must be urgency, in that the interim relief must be necessary to avoid
serious and irreparable damage from being caused to the party seeking the relief; and
the national court must take due account of the Community interest. It is for the national
court to decide, in accordance with its own rules of procedure, which is the most
appropriate way of obtaining all relevant information on the Community act in question.
Finally, in its assessment of all those conditions, the national court must respect any
decisions of the Court of Justice or the Court of First Instance ruling on the lawfulness of
the Community act or on an application for measures seeking similar interim relief at
Community level.

The second paragraph of Article 177 of the Treaty does not preclude a national court
which has ordered suspension of implementation of a national administrative decision
based on a Community act and which has, in accordance with the obligation incumbent
on it, referred to the Court for a preliminary ruling a question on the validity of the
Community act from granting leave to appeal against its decision.

Although the obligation to make a reference to the Court is founded on the necessity to
ensure that Community law is applied uniformly and to safeguard the Court's exclusive
jurisdiction to rule on the validity of an act of Community law, the need to comply with
those overriding considerations is not affected by the fact that an appeal can be lodged
against the decision of the national court, since, if that decision were to be set aside or
reversed on appeal, the preliminary ruling procedure would have no further purpose and
Community law would again be fully applicable. Secondly, the possibility of lodging such
an appeal does not prevent implementation of the preliminary ruling procedure by the
court ruling at last instance, which is obliged, under the third paragraph of Article 177 of
the Treaty, to make a reference if it has doubts concerning the interpretation or validity
of Community law.
_______________________________________________________________________
C-310/95 – 22/4/97 – Road Air BV v Inspecteur der Invoerrechten en Accijnzen
(European Court reports 1997 Page I-02229)

Association of overseas countries and territories - Import into the Community of goods
originating in a non-member country but in free circulation in an OCT - Article 227(3) of
the EC Treaty - Part Four of the EC Treaty (Articles 131 to 136a) - Council Decisions
86/283/EEC, 91/110/EEC and 91/482/EEC

Article 133(1) of the Treaty must be interpreted as not covering imports of goods in free
circulation in overseas countries and territories (OCT) but not originating there. An
interpretation whereby it extended to such goods would result in the OCT being granted
conditions similar to those which the Member States accord each other under the Treaty
and in their being included in the common customs area, a result which goes far beyond
what was envisaged by the Treaty.
The second paragraph of Article 136 of the Treaty must be interpreted as providing not
for a single `further period' following the initial period of five years mentioned in the first
paragraph of that article, for which the Council is empowered to adopt provisions needed
in order to attain the objectives of the association of overseas countries and territories,
but as introducing a regime under which, depending on the progress made, there may be
further successive periods, each covered by specific provisions adopted by the Council.
The reference to a `further period', unaccompanied by any mention of its duration, is in
itself indicative of the fact that the Council enjoys a discretion for the purpose of
progressively attaining the objectives mentioned in Article 132 of the Treaty. Since 1
March 1991, pursuant to Article 101(2) of Decision 91/482 on the association of the
overseas countries and territories (OCT), adopted by the Council in the exercise of the
powers conferred on it by the second paragraph of Article 136 of the Treaty, customs
duties may be levied on imports into the Community of goods which originate in
non-member countries but are in free circulation in an OCT if the duties paid on
importation into the latter were lower than those which would have been levied on
importation into the Community.
That provision makes the exemption from customs duties for which it provides in favour
of certain goods originating in non-member countries but in free circulation in an OCT
conditional upon the prior payment in that OCT of customs duties or charges having
equivalent effect, without any refund thereof, at a rate equal to or higher than that of the
duties applicable to imports of the same products into the Community.
Such retroactive application of a decision which entered into force on 20 September 1991
is permissible provided that the persons concerned enjoy more favourable conditions that
those previously in force and that their legitimate expectations are properly respected.
_______________________________________________________________________
C-274/95 to C-276/95 – 17/4/97 – Ludwig Wünsche & Co. v Hauptzollamt Hamburg-
Jonas (European Court reports 1997 Page I-02091)

Common Customs Tariff - Combined Nomenclature - Potato starch

The classification of esterified potato starch under heading 11.08 A IV of the Common
Customs Tariff, and under subheading 11 08 13 00 of the Combined Nomenclature, or
under heading 39.06 B I of the Common Customs Tariff, and under subheading 3505 10
50 of the Combined Nomenclature, depends primarily on its acetyl content and therefore
on its degree of esterification, since the mere chemical process of esterification occurring
in the manufacture of the product is not sufficient in itself to enable it to be decided that
the potato starch should be classified under one or other of those headings.
A maximum acetyl content of between 0.61% and 0.74% by weight of esterified potato
starch does not preclude that product from being classified under heading 11.08 A IV.
It is however for the national court to determine whether the nature of the esterification
does not amount to an alteration of the potato starch such that it no longer corresponds
qualitatively to native potato starch.
_______________________________________________________________________
C-272/95 – 15/4/97 – Bundesanstalt für Landwirtschaft und Ernährung v Deutsches
Milch-Kontor GmbH (European Court reports 1997 Page I-01905)

Aid for skimmed-milk powder - Systematic inspections - Costs of inspections

Since inspections carried out systematically by the Member State of dispatch and
intended to verify the composition and quality of skimmed-milk powder which is to be
denatured or processed into compound feedingstuffs on the territory of another Member
State and which, as such, is eligible for the grant of aid, are not provided for by the
relevant Community legislation, namely Article 2(1) and (4) of Regulation No 1624/76, in
the version set out in Regulation No 1726/79, and Article 10 of Regulation No 1725/79,
they constitute measures having equivalent effect to quantitative restrictions on exports in
trade between Member States which are prohibited by Article 34 of the Treaty. In this
respect, it is of no account whether those inspections are carried out at the frontier or
within the territory of the State of dispatch, provided that they are carried out with a view
to the future exportation of the same goods. Nor are the inspections justified by one the
requirements recognized by Article 36 of the Treaty. Such inspections are, on the other
hand, permissible if they are carried out only by way of spot checks.
A charge levied by a Member State in respect of inspections which are carried out on the
occasion of the export of skimmed-milk powder intended for the preparation of animal
feedingstuffs in another Member State, but which, by reason of their systematic nature,
can find no basis in Regulation No 1624/76 and Regulation No 1725/79, constitutes a
charge having equivalent effect to a customs duty on exports which is prohibited by
Articles 9 and 12 of the Treaty, even if it corresponds to the actual cost of each
inspection, and this is so whether the inspections are carried out at the frontier or within
the territory of the State of dispatch with a view to the future exportation of the inspected
goods.
_______________________________________________________________________
C-242/95 – 17/7/97 – GT-Link A/S v De Danske Statsbaner (DSB) (European Court
reports 1997 Page I-04449)

Maritime transport - Port duty on shipping and goods - Import surcharge - Abuse of a
dominant position

It is contrary to Article 95 of the Treaty for a Member State to impose a 40% import
surcharge on a general duty levied on goods loaded, unloaded, or otherwise taken on
board or landed within its ports or in the deep-water approach channels to its ports
where goods are imported by ship from another Member State.
It is for the domestic legal order of each Member State to designate the courts and
tribunals having jurisdiction and to lay down the detailed procedural rules, including
those relating to the burden of proof, governing actions for safeguarding rights which
individuals derive from the direct effect of Article 86 of the Treaty, provided that such
rules are not less favourable than those governing similar domestic actions and do not
render virtually impossible or excessively difficult the exercise of rights conferred by
Community law.
Where a public undertaking which owns and operates a commercial port occupies a
dominant position in a substantial part of the common market, it is contrary to Article
90(1) in conjunction with Article 86 of the EEC Treaty for that undertaking to levy port
duties of an unreasonable amount pursuant to regulations adopted by the Member State
to which it is answerable or for it to exempt from payment of those duties its own ferry
services and, reciprocally, some of its trading partners' ferry services, in so far as such
exemptions entail the application of dissimilar conditions to equivalent services. It is for
the national court to determine whether, having regard to the level of the duties and the
economic value of the services supplied, the amount of duty is actually unfair. It is also
for the national court to determine whether exempting its own ferry services, and
reciprocally those of some of its trading partners, from payment of duties in fact amounts
to the application of dissimilar conditions to equivalent services.
Dock work consisting of loading, unloading, transhipment, storage and general
movement of goods or material of any kind is not necessarily of general economic
interest exhibiting special characteristics compared with that of other economic
activities. In any event, Article 90(2) of the Treaty does not permit a public undertaking
which owns and operates a commercial port to levy for the use of port facilities duties
which are contrary to Community law and which are not necessary to the performance of
the particular task assigned to it.
Persons or undertakings on whom duties incompatible with Article 90(1) in conjunction
with Article 86 of the Treaty have been imposed by a public undertaking which is
responsible to a national ministry and whose budget is governed by the Budget Law are
in principle entitled to repayment of the duty unduly paid.
The only exception is where it is established that the person required to pay those
charges has actually passed them on to other persons. However, traders may not be
prevented from applying to the courts having jurisdiction, in accordance with the
appropriate procedures of national law, for reparation of loss caused by the levying of
charges not due, irrespective of whether those charges have been passed on.
_______________________________________________________________________
C-192/95 to C-218/95 – 14/1/97 – Société Comateb (C-192/95), Société Panigua
(C-193/95), Société Edouard et fils (C-194/95), Société de distribution de vins et liqueurs
(C-195/95), Etablissements André Haan (C-196/95), Société Diffusion générale de
quincaillerie (C-197/95), Société Diffusion générale (C-198/95), Société Cama Renault
(C-199/95), Scp Ovide et Dorville (C-200/95), Société Ducros Guadeloupe (C-201/95),
Société Comptoir commercial Caraïbes (C-202/95), Société Giafa (C-203/95), Société
LVS (C-204/95), Société Catherine et Jean-Claude Tabar Nouval (C-205/95), Société
L'Heure et L'Or (C-206/95), Société Général bazar bricolage (C-207/95), Société Grain
d'or (C-208/95), Société Cash Service (C-209/95), Etablissements Efira (C-210/95),
Société Farandole (C-211/95), Société Carat (C-212/95), Société Rio (C-213/95), Société
guadeloupéenne de distribution moderne (SGDM) (C-214/95), Martinique automobiles
SA (C-215/95), Socovi SARL (C-216/95), Etablissements Gabriel Vangour et Cie SARL
(C-217/95), Simat Guadeloupe SARL (C-218/95) v Directeur général des douanes et
droits indirects (European Court reports 1997 Page I-00165)

Dock dues - Recovery of sums unduly paid - Obligation to pass on the charge - Overseas
departments

A Member State may object to repayment to the trader of a national charge levied in
breach of Community law only where it is established that the charge has been borne in
its entirety by someone other than the trader and that reimbursement to the trader would
amount to his unjust enrichment. It is for the national courts to determine, in the light of
the facts in each case, whether those conditions have been satisfied. If the charge has
been passed on only in part, it is for the national authorities to reimburse to the trader
the sum not passed on. The fact that a legal obligation exists to incorporate the charge in
the cost price does not mean that it can be assumed that the entire charge has been
passed on, even when failure to comply with that obligation would involve a penalty.
Where, although the charge has been passed on to purchasers, the rules of domestic law
permit traders to allege that they have been caused damage by the illegal levying of the
charge, to the total or partial exclusion of any unjust enrichment, it is for the national
court to draw the appropriate inferences. Such damage could be caused by, inter alia, the
fact that the unlawful charge by increasing the price of the imported goods has reduced
sales and thus profits.
_______________________________________________________________________
C-164/95 – 17/6/97 – Fábrica de Queijo Eru Portuguesa Ldª v Alfândega de Lisboa
-Tribunal Técnico Aduaneiro de 2ª Instância (European Court reports 1997 Page I-03441)

Common Customs Tariff - Tariff classification - Grated cheese

Subheading 0406 20 90 of Regulation No 2658/87 on the tariff and statistical


nomenclature and on the Common Customs Tariff, as amended by Regulation No
3174/88 amending Annex I to Regulation No 2658/87, must be interpreted as including
grated cheese obtained from a type of cheese having a moisture content greater than that
normally used to produce grated cheese which, when imported, is, by reason of the
method of packaging and preservation used, in an agglomerated form and, after
unpacking and exposure to the surrounding air, breaks down into irregular granules.
In so far as the cheese in question was grated prior to packaging and broke down into
irregular granules after unpacking and exposure to the surrounding air, neither the fact
that the product in question is obtained from a type of cheese having a moisture content
greater than that normally used to produce grated cheese nor the method of packaging or
preservation of the product can, for purposes of the Combined Nomenclature, deprive it
of its objective character, namely grated cheese.
_______________________________________________________________________
C-130/95 – 17/7/97 – Bernd Giloy v Hauptzollamt Frankfurt am Main-Ost (European
Court reports 1997 Page I-04291)

Article 177 - Jurisdiction of the Court - National legislation adopting Community


provisions - Community Customs Code - Appeal - Suspension of a customs decision
-Provision of security

The Court has jurisdiction to give preliminary rulings on provisions of Community law in
situations in which the facts of the case fall outside the scope of Community law where, in
regulating internal situations, domestic legislation has adopted the same solutions as
those adopted in Community law so as to provide for one single procedure in comparable
situations. It is clearly in the Community interest that, in order to forestall future
differences of interpretation, provisions or concepts taken from Community law should be
interpreted uniformly, irrespective of the circumstances in which they are to apply. On a
proper construction of the second paragraph of Article 244 of Council Regulation 2913/92
establishing the Community Customs Code, the customs authorities should suspend
implementation of a disputed customs decision in whole or in part where one only of the
two conditions mentioned in that provision is fulfilled, so that suspension must be granted
where there is a risk of irreparable damage to the person concerned. It is not necessary
that there be reason to believe that the disputed decision is inconsistent with customs
legislation.
As regards interpretation of the term `irreparable damage', guidance is provided by the
interpretation of that term as a condition for the grant of an order suspending operation
of an act under Article 185 of the Treaty.
The fact that irreparable damage may be suffered by the person concerned in the event of
immediate implementation of a disputed customs decision does not prevent the customs
authorities from making suspension of its implementation conditional upon the lodging of
security. Although under the second paragraph of Article 244 of the Community Customs
Code the condition relating to the risk of irreparable damage is a ground justifying
suspension of implementation of a disputed decision, that condition is not relevant as
regards the necessity of providing security.
However, if the requirement to lodge security is likely, owing to the debtor's
circumstances, to cause serious economic or social difficulties, the customs authorities
are free to decide not to require such security to be lodged. This would be the case if the
debtor did not have sufficient means to provide such security.
Where suspension of implementation of a disputed customs decision is subject, under the
third paragraph of Article 244 of the Community Customs Code, to the lodging of
security, the amount of that security must be set at the precise amount of the debt or, if
this cannot be established with certainty, at the maximum amount of the debt which has
been, or may be, incurred, unless the requirement to provide security is likely to cause
the debtor serious economic or social difficulties; if that is the case, the amount of
security may be set, taking into account the debtor's financial situation, at an amount less
than the total amount of the debt concerned.
_______________________________________________________________________
C-121/95 – 20/6/96 – Vobis Microcomputer AG v Oberfinanzdirektion München
(European Court reports 1996 Page I-03047)

Common Customs Tariff - Tariff headings - Basic module for the assembly of a data-
processing machine - Classification in the Combined Nomenclature

The Combined Nomenclature of the Common Customs Tariff, in the version annexed to
Regulation No 2502/92 amending Annexes I and II to Regulation No 2658/87, is to be
interpreted as meaning that a basic module for the assembly of a data-processing
machine, consisting of a housing essentially containing two disk drives, is to be
classified, pursuant to General Rule 3(b) for the interpretation of the Combined
Nomenclature of the Common Customs Tariff, under subheading No 8471 93 59 as a
"storage unit", on the basis of the drives it contains. The disk drives which give such a
basic module for data processing its essential character fall within that subheading in
view of their characteristics.
_______________________________________________________________________
C-114/95 and C-115/95 – 17/7/97 – Texaco A/S v Middelfart Havn, Århus Havn, Struer
Havn, Ålborg Havn, Fredericia Havn, Nørre Sundby Havn, Hobro Havn, Randers Havn,
Åbenrå Havn, Esbjerg Havn, Skagen Havn and Thyborøn Havn and Olieselskabet
Danmark amba v Trafikministeriet, Fredericia Kommune, Køge Havn, Odense
Havnevæsen, Holstebro-Struer Havn, Vejle Havn, Åbenrå Havn, Ålborg Havnevæsen,
Århus Havnevæsen, Frederikshavn Havn, Esbjerg Havn (European Court reports 1997
Page I-04263)

Maritime transport - Goods duty - Import surcharge

It is contrary to Article 95 of the Treaty for a Member State to impose a 40% import
surcharge on a general duty levied on goods loaded, unloaded, or otherwise taken on
board or landed within its ports or in the deep-water approach channels to its ports
where goods are imported by ship from another Member State.
Article 18 of the Agreement between the European Economic Community and the
Kingdom of Sweden imposes on the contracting parties a rule against discrimination in
matters of taxation, which is dependent only on a finding that the products affected by a
particular system of taxation are of like nature, and which prohibits discrimination
arising from any measure or practice having a direct or indirect effect on the way in
which taxes imposed on the other contracting party's products are determined, applied or
collected. It follows that a goods duty which forms part of a general system of internal
dues applying systematically to categories of products according to objective criteria
applied without regard to the origin of the products constitutes an internal measure of a
fiscal nature within the meaning of Article 18 of that Agreement.
Accordingly, a 40% import surcharge on a general duty levied on goods loaded,
unloaded, or otherwise taken on board or landed within its ports or in the deep-water
approach channels to its ports where goods are imported by ship is contrary to
Community law where it is applicable to goods imported from a non-member country
with which the Community has concluded an agreement containing provisions similar to
those of Article 18 of the Agreement between the European Economic Community and the
Kingdom of Sweden.
Article 95 of the Treaty applies only to products from the Member States and, where
appropriate, to goods originating in non-member countries which are in free circulation
in the Member States. It follows that that provision is not applicable to products imported
directly from non-member countries. Furthermore, for trade with non-member countries,
as far as internal taxation is concerned, the Treaty does not include any rule analogous
to that laid down in Article 95.
Where a Member State has imposed or approved a duty contrary to Community law, it is
required in principle to repay the duty levied in breach of Community law. If the
proceeds of the duty have been allocated to independent operators subject to local
authority control, it is not contrary to Community law for the action for repayment of
those duties to lie against one of those operators, provided that the rules governing such
actions are not less favourable than those governing similar domestic actions and are not
so framed as to render virtually impossible or excessively difficult the recovery of duty
unduly paid.
It is not contrary to Community law for a national limitation period applicable to claims
for repayment of duties levied in breach of Article 95 of the Treaty or a provision similar
to Article 18 of the Agreement concluded between the European Economic Community
and the Kingdom of Sweden to run from an earlier point in time than that from which the
duties were discontinued.
The laying down of reasonable limitation periods, which is an application of the
fundamental principle of legal certainty, cannot be regarded as rendering virtually
impossible or excessively difficult the exercise of rights conferred by Community law.
_______________________________________________________________________
C-97/95 – 17/7/97 – Pascoal & Filhos Ldª v Fazenda Pública (European Court reports
1997 Page I-04209)

Customs duties - Methods of administrative cooperation - Procedures for verifying


EUR.1 certificates - Post-clearance recovery of customs duties - Person responsible for
the customs debt

A communication addressed to the authorities of the State of importation by the


authorities of the State of exportation following subsequent verification of an EUR.1
movement certificate, in which the latter merely confirm that the certificate in question
was improperly issued and must therefore be cancelled, without setting out in detail the
reasons justifying cancellation, must be regarded as `results of ... verification' within the
meaning of Article 25(3) of Annex II to Decision 86/283 on the association of the
overseas countries and territories with the European Economic Community. The
authorities of the State of importation are entitled to bring an action for recovery of the
uncollected customs duties on the basis of such a communication alone, without seeking
to establish the true origin of the goods imported.
The responsibility of the exporter, under Article 10(1) of Annex II to Decision 86/283 on
the association of the overseas countries and territories with the European Economic
Community, to submit the request for the EUR.1 certificate, along with, where relevant,
any supporting documents, concerns only the procedure for obtaining the EUR.1
certificate. It does not extend to customs duties which prove to be due in respect of the
importation into the European Community of goods which are the subject of an EUR.1
movement certificate, even where the latter was issued on the basis of false information
supplied by the exporter as to the origin of the goods and was cancelled following
subsequent verification.
The fact of requiring, in certain circumstances, an importer who has acted in good faith
to pay customs duties payable on the importation of goods in respect of which the
exporter has committed a customs offence, where the importer has played no part in that
offence, is not contrary to the general principles of law, in particular the principles of
proportionality and legal certainty, which the Court must uphold. It is the responsibility
of professional traders to make the necessary arrangements in their contractual relations
in order to guard against the risks of an action for post-clearance recovery.
Furthermore, the fact that the authorities of the State of exportation issued an EUR.1
movement certificate pursuant to Decision 86/283 without having carried out any prior
check to determine the true origin of the goods in question does not constitute a case of
force majeure preventing post-clearance recovery of customs duties owed by an importer
who has acted in good faith. Article 8(2) of Annex II to Decision 86/283 entitles, but does
not oblige, the authorities of the State of exportation to carry out such a prior check. In
those circumstances, a situation in which a customs debt subsequently proves to be due,
even though those authorities had decided, in a specific case, not to exercise that option,
is neither abnormal nor unforeseeable.
_______________________________________________________________________
T-75/95 – 5/6/96 – Günzler Aluminium GmbH v Commission of the European
Communities (European Court reports 1996 Page II-00497)

Action for annulment - Commission decision refusing remission of import duties

In an action for annulment, the Community Court cannot, without encroaching on the
prerogatives of the administrative authority, order a Community institution to take the
necessary measures to comply, as required by Article 176 of the Treaty, with a judgment
by which a decision is annulled. In an action for annulment of a Commission decision
finding that remission of import duties is not justified, it is therefore inadmissible to seek
an order requiring the Commission to adopt a new decision on the matter. Article 5(2) of
Regulation No 1697/79 lays down three conditions which must be met concurrently to
enable the competent customs authorities to refrain from taking action for the
post-clearance recovery of import duties: the duties must not have been collected as a
result of an error made by the competent authorities, the person liable must have acted in
good faith ° that is to say that he could not reasonably have detected the error made by
the competent authorities ° and he must have observed all the provisions laid down by the
rules in force as far as his customs declaration is concerned. In order to determine, more
particularly, whether or not the error could have been detected by the trader concerned,
all the circumstances of the individual case must be assessed objectively, taking into
account, in particular, the nature of the error, the professional experience of the trader
concerned and the degree of care which he exercised. A trader does not exercise sufficient
care if, by paying the exporter' s invoice before receiving the assessment notice, which
contained an error, he took a financial risk which was not unavoidable by virtue of his
contractual obligations and so cannot claim to have entertained a legitimate expectation,
subsequently frustrated, as to the absence of any customs debt, and if the error could have
been detected by an attentive trader by reading the Official Journal in which the relevant
provisions had been published several days before the import transactions in question
took place. In that regard, the duty to consult the Official Journal does not apply only to
commercial traders whose activities essentially consist of import-export operations but
also to those who have gained some experience of importing the goods in question.
Although the Commission is wrong in law if it applies Regulation No 1430/79 on the
repayment or remission of import or export duties in a case submitted to it by national
authorities where the duty had not been paid and where it should therefore have applied
Regulation No 1697/79 on the post-clearance recovery of such duties, such an error does
not justify annulling the Commission' s decision where obvious negligence on the part of
the trader, which the Commission considers precludes him from benefiting from the
provisions of Article 13 of Regulation No 1430/79, is linked to the fact that the error is
capable of being detected, which can preclude him from benefiting from the provisions of
Article 5(2) of Regulation No 1697/79, and where the Commission' s confusion of the two
legal bases was of a purely formal nature and did not have any decisive influence as to
the outcome of its substantive examination.
_______________________________________________________________________
C-67/95 – 9/10/97 – Rank Xerox Manufacturing (Nederland) BV v Inspecteur der
Invoerrechten en Accijnzen (European Court reports 1997 Page I-05401)

Common Customs Tariff - Tariff headings - Copiers and fax machines - Classification in
the combined nomenclature

The Common Customs Tariff must be interpreted as meaning that apparatuses which can
both send faxes and make copies, and comprise a scanning device (scanner), a digital
storage device (memory) and a printing device (laser printer), are to be classified under
sub-heading 9009 12 00 of the combined nomenclature.
Such multi-function machines, which might be classified either under heading 8517 or
under heading 9009, must be classified, in accordance with general rule 3(c) for the
interpretation of the combined nomenclature, under the heading which occurs last in
numerical order among those which equally merit consideration since, first, general rule
3(a), according to which the most specific description is to be preferred, is excluded
because the relevant tariff headings fall within different chapters and, second, general
rule 3(b) does not apply because those apparatuses display no feature enabling their
essential character to be determined.
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C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 –
12/12/96 – Olasagasti & C. Srl (C-47/95), Comarcon SNC (C-48/95), Ghezzi Alimentari
Srl (C-49/95), Fredo Srl (C-50/95), Cateringros Srl (C-60/95), Intercod Srl (C-81/95),
Nuova Castelli SpA (C-92/95) and Igino Mazzola SpA (C-148/95) v Amministrazione
delle finanze dello Stato (European Court reports 1996 Page I-06579)

Regulation (EEC) Nº 3835/90 - Regulation (EEC) nº 3587/91 - Regulation (EEC) nº


3416/91 - Act of Accession of Spain and Portugal - Article 5(1) and (2) of Regulation
(EEC) nº 1697/79 - Regulation (EEC) nº 1715/90 - Regulation (EEC) nº 2164/91
-Customs duties - Tariff preferences - Agricultural products - Post-clearance recovery
-Binding information - Tuna in olive oil

The suspension of residual customs duties applicable to imports from Spain into the
Community of Ten under Article 75(1) of the Act of Accession, provided for in Article
1(1) of Regulation No 3416/91 on certain residual duties applicable in 1991 in the
framework of the successive reduction in accordance with the Act of Accession of Spain
and Portugal for the agricultural products listed in the Annex to Regulation No 3835/90,
amending Regulations Nos 3831/90, 3832/90 and 3833/90 in respect of the system of
generalized tariff preferences applied to certain products originating in Bolivia,
Colombia, Ecuador and Peru, does not apply to imports of preserved tuna in olive oil
from Spain.
Provisions granting suspension of customs duties are to be interpreted strictly according
to their terms and may not therefore be applied, contrary to their wording, to products
which they do not mention.
Whilst it is true, first, that Regulation No 3416/91 sought to ensure that agricultural
products imported from Spain and Portugal were treated no less favourably than the
same products imported from the four non-member countries mentioned in Regulation No
3835/90 and granted preferential treatment, and, second, that preserved tuna in olive oil
ranks among the agricultural products listed in the Annex to the latter regulation, the fact
nevertheless remains that the wording of Article 1(1) of Regulation No 3416/91 makes no
reference to Article 173 of the Act of Accession, which, forming part of Chapter 4 dealing
with fisheries, a chapter quite separate from Chapter 3 which deals with agriculture,
provides for the progressive abolition of customs duties on fishery products. Furthermore,
the suspension of customs duties on fishery products requires an act of the Council.
Although Article 75(4) of the Act of Accession, on which that regulation is based,
empowers the Commission to suspend customs duties on the products mentioned in that
article, no provision of the Act of Accession empowers the Commission to suspend duties
on fishery products.
Only measures relating to the tariff classification of goods addressed by the competent
authorities directly to a particular trader in a specific case and falling within the
category exhaustively defined by Regulation No 1715/90 constitute `information given by
the customs authorities themselves which is binding on them' within the meaning of the
second indent of Article 5(1) of Regulation No 1697/79 on the post-clearance recovery of
import or export duties.
Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import or export
duties makes the right of the person liable to pay customs duties not to have
post-clearance recovery effected by the competent authorities subject to three conditions
whose fulfilment is a matter to be assessed by the national court, namely: the competent
authorities themselves must have made an error, that error must be such that it could not
reasonably have been detected by the person liable and the person liable must have acted
in good faith and complied with all the provisions laid down by the legislation in force so
far as his customs declaration is concerned.
In determining whether or not the error committed by the authorities could reasonably
have been detected by the person liable account should be taken, in particular, of the
nature of the error, the professional experience of the trader concerned and the degree of
care exercised by him. The relevant factors to be taken into account include the
complexity of the legislation, the terms in which the objective of the provisions at issue is
expressed, recurrence of the error in question in other measures of the Member State
concerned and any divergence of views between the Member States as to the proper
interpretation of the relevant provisions.
_______________________________________________________________________
C-38/95 – 12/12/96 – Ministero delle Finanze v Foods Import Srl (European Court
reports 1996 Page I-06543)

Common Customs Tariff - Tariff headings - Fish of the Molva molva kind

Upon application of rule 1 of the general rules for the interpretation of the Common
Customs Tariff nomenclature, tariff headings 03.02 A I b) and 03.02 A II a) of the
Common Customs Tariff, covering respectively whole cod, headless cod or pieces of cod,
dried, salted or in brine and fillets of cod, dried, salted or in brine, as amended by
Regulation No 3796/91 on the common organisation of the market in fishery products,
are to be interpreted as meaning that the list of species whose scientific names are
indicated in brackets following the word `cod' is exhaustive, so that ling, whose scientific
name is Molva molva, does not fall under those headings and must therefore be classified
under the residual headings 03.02 A I f) and 03.02 A II d), which means that it is
excluded from the suspension of customs duties on imports provided for by Article 20 of
the regulation.
In order to determine whether the error committed by the competent authorities `could
not reasonably have been detected by the person liable' within the meaning of Article
5(2) of Regulation No 1697/79, on the post-clearance recovery of import duties or export
duties which have not been required of the person liable for payment on goods entered
for a customs procedure involving the obligation to pay such duties, account must be
taken, in particular, of the nature of the error, the professional experience of the trader
concerned and the degree of care which he exercised. The relevant factors to be taken
into consideration in assessing the nature of the error include the possibility that the
terminology used may have caused confusion, the fact that a change of rule was not
apparent and the time taken by the competent authorities themselves to realize that such
a change had been made. It is for the national court to determine, on the basis of that
interpretation, whether or not the error which led to duties not being collected was
detectable by the person liable.
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